TaxTMI 
TaxTMI 
2007 (8) TMI 202
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....ssessment done in regular process under section 143. Since there was no reason to issue such notice, notice was bad in law. 2. The Revenue filed an affidavit-in-opposition disclosing reason for reopening the assessment. The recording of reasons before issuing of notice under section 148 was annexed to the affidavit-in-opposition. The writ petition thus took a different shape as at the time of hearing the respondent/assessee took the plea that the reason so disclosed by the Revenue were not sufficient to reopen the assessment. The learned single judge after considering the rival contentions allowed the writ petition by holding that the very basis of forming the opinion was not sustainable in law and, hence, the notice issued under section 1....
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....rted decision delivered by one of us (Ashim Kumar Banerjee J.) in C. R. Nos. 2553-2554(W) of 1981 dated April 26, 2001 6 Mr. J. P. Khaitan, learned senior counsel while opposing the appeal, contended that on a plain reading of the record of reasons would appear that the notice was issued on the basis of the valuation submitted by the Valuation Officer. The Valuation Officer at the relevant time was not authorised to undertake such valuation as the power conferred upon him under section 142A was introduced by the Finance (No. 2) Act of 2004, with retrospective effect from November 15, 1972 whereas the subject assessment sought to be reopened related to the assessment war 1967-68. He contended that when the Valuation Officer was not entitled....
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....ial was not a thing to be considered at that stage and the notice on the ground of insufficiency of reason could not be held to be invalid. The apex court observed (page 35) " . . . It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding". (iv) GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 (SC) : The apex court held that once the reasons were disclosed the Assessing Officer would have to dispose of the objection if filed by passing a reasoned order. The apex court while observing as such, directed the appellate authority to dispose of the appeal e....
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....ssee had not disclosed fully and truly all the material facts at the of the regular assessment such prima facie opinion of the Income tax Officer was not open for judicial review on the ground of insufficiency or inadequacy of the reasons. The Division Bench observed that it was jurisdiction of the Income-tax Officer to consider the materials to in proceedings and when there was, prima facie material at his hands High Court in exercise of power under article 226 should not interfere with the discretion of the Income-tax Officer when no case of mala fides had been established. The Division Bench further observed, the sufficiency or correctness of the material was not a matter to be considered at that stage (x) Hotel Mount View v. CIT ....
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....f the Valuation Officer could not be the basis of issuance of notice under section 148. The said judgment was delivered by the apex court on July 7, 2003. The Legislature thereafter amended the law by incorporating section 142A by the Finance (No. 2) Act of 2004, making it retrospective from November 15, 1972. Hence the ratio decided by the apex court in the case of Smt. Amiya Bala Paul reported in [2003] 262 ITR 407 is no more applicable. The impugned notice, however, was issued proposing reopening of the assessment for the year 1967-68. Hence, the report of the Valuation Officer could not be relied on by the Revenue in terms of section 142A. The ratio decided in Smt. Amiya Bala Paul [2003] 262 ITR 407 (SC) would be squarely applicable in ....
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....te order by holding that Rs. 3.36 lakhs was to be considered income from undisclosed source for the years in which construction was carried out. There was no material before us as to whether the said order was challenged by the assessee. Pertinent to note, the assessee did not file any affidavit-in-reply dealing with the allegation contained in the affidavit-in-opposition filed before the learned single judge disclosing the record of reasons. Mr. Khaitan also could not highlight on this aspect. 11. To sum up, the record of reasons was not based upon the valuation report submitted by the Valuation Officer. The Valuation Officer opined that the estimated cost was Rs. 14.78 lakhs. The Tribunal reduced to it to Rs. 10 lakhs. Notice of escapeme....