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2016 (12) TMI 1555

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....etition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned notice under Section 148 of the Income Tax Act (Annexure D), by which, the Assessing Officer has sought to reopen the assessment for AY 200910 beyond the period of four years. 3.0. The facts leading to the present petition in nutshell are as under: 3.1. That the assessee is a Cooperative Bank registered under the Gujarat Cooperative Societies Act. The assessee filed return of income for AY 200910. Thereafter, revised return of income was filed. That along with return of income / revised return of income, the assessee produced the balance sheet and profit and loss account, durin....

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....rovisions of Rs. 1,17,91,812/for Government Securities Premium Amortization and simultaneously claimed Investment Depreciation of 29,02,076/on same securities. When premium paid is being written off, again the same security cannot be revalued again on the same date to claim loss on revaluation because under any circumstances, bank will get principal amount on its maturity. Both the benefits cannot be claimed simultaneously i.e. writing off premium and claiming notional loss also on revaluations on year end. 3. In view of the above, I have reason to believe that income chargeable to tax more than Rs. 1 lakh has escaped assessment for the year under consideration." 3.3. After receiving the reasons recorded to reopen the assessment for AY ....

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....rue and correct facts necessary for assessment. It is submitted that therefore, the impugned notice for reopening the assessment for 200910 cannot be sustained and same deserves to be quashed and set aside. In support of his above submission, Shri Shah, learned counsel for the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of CIT vs. Kelvinator of India Limited, reported in [2010] 320 ITR 561 (SC). 5.0. Ms. Bhatt, learned counsel for the revenue has tried to justify to the notice and reopening of the AY for 200910 issued under Section 148 of the Act. 5.1. It is submitted that as it was noticed that the assessee Bank has debited Rs. 20,93,398/to profit and loss account on account of provision f....

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....ion 147 of the Act are required to be satisfied. It cannot be disputed that to assume jurisdiction under Section 147 of the Act and to reopen the assessment beyond the period of four years, one of the condition precedent is that there must be a failure on the part of the assessee in disclosing true and correct facts necessary for the assessment. Therefore, unless and until the aforesaid condition is satisfied, there cannot be any reopening of assessment beyond the period of four years. Even there is a direct decision of the Apex Court on this issue, rendered in case of Kelvinator of India Limited [Supra]. 6.2. In the present case, the reasons recorded to reopen the assessment for AY 20092010, which is beyond the period of four years, are r....