TaxTMI 
TaxTMI 
2017 (7) TMI 1010
X X X X Extracts X X X X
X X X X Extracts X X X X
....also submitted on 17th November, 2009 by the Petitioner. An assessment order under Section 143 (3) of the Act was passed by the AO on 30th December, 2009. 3. Thereafter, two notices under Section 148 of the Act came to be issued on 31st May, 2012 and 28th March, 2013 for the AY 2008-09. Both these notices came to be challenged by the Petitioner in W.P.(C) Nos. 446/2014 and 4631/2014 which were disposed of by this Court by a common order on 3rd September, 2014. The said order reads as under: " These writ petitions are being disposed of together inasmuch as they pertain to the same very petitioner and relate to the same assessment year 2008-09. In these petitions, the notices issued under Section 148 on 31.05.2012 and 28.03.2013 are impugned. We have heard the parties at length. We need not set out all the arguments in detail. It would suffice to say that the said notices do not meet the requirements of law. Consequently, the notices under Section 148 dated 31.05.2012 and 28.03.2013 are set aside and all proceedings pursuant thereto are quashed. Quashing of the notices dated 31.05.2012 and 28.03.2013, however, does not preclude the Assessing Officer from issuing a fresh noti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le in law. Mr. Aggarwal further submitted that the two reasons for the reopening of the assessment are unsustainable inasmuch as, all the information regarding the said two issues already stood submitted to the AO. This was duly brought to the AO's notice in the objections filed by the Petitioner. 8. Mr. Aggarwal further submitted that in view of the ratio of the decision of the Supreme Court in Commissioner of Income Tax, Delhi v. Kelvinator of India Limited (2010) 2 SCC 723, the same material cannot be looked into for opening the assessment. The reasons recorded by the AO do not satisfy the legal requirement under the first proviso to Section 147 of the Act. Mr. Aggarwal further submitted that the Petitioner has already gone through two rounds of enquiry, inasmuch as, it was also issued a notice under Section 263 of the Act on 30th December, 2011 for the very same AY. Mr. Aggarwal also relied upon the decision in Agya Ram v. Commissioner of Income Tax, Delhi, (2016) 386 ITR 545 (Del). Mr. Aggarwal thus submitted that this is nothing but a case of change of opinion on the same material, which is impermissible in law. Respondent's Submissions 9. Mr. Zoheb Hossain, learned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lose fully and truly all material facts necessary for the assessment for the relevant assessment order. 13. The wording of this provision makes it clear that reopening of assessments after a period of four years, ought to be an exception and not the rule. The purpose of this provision is to ensure that there is some finality which is attached after the period of four years, for assessments which have been completed under Section 143 (3) of the Act. The AO has to necessarily record that there has been a failure on the part of the Assessee to disclose fully and truly all material facts necessary for his assessment, failing which the reopening of the assessment cannot be triggered. 14. In the facts of the present case, the reasons stated by the AO do not satisfy the mandatory legal requirement for reopening the assessment since they failed to record the failure on the part of the Assessee to disclose fully and truly all material facts necessary for the assessment. 15. For the AY 2008-09, the Assessee's return has been subjected to multiple scrutinies; (i) under Section 143 (3) of the Act; (ii) under Section 263 of the Act; (iii) under Sections 147/148 of the Act ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioner has always been known to the Revenue year after year. Even in this reason there is not even a whisper of the failure by the Petitioner to make a full and true disclosure of all the material facts necessary for the assessment. 21. Thus, the impugned notice does not satisfy the rigors of Sections 147/148 of the Act as there has been no non-disclosure of the material facts by the Petitioner. In fact, even the reasons accompanying the impugned notice do not even say that there is any failure by the Petitioner to disclose fully and truly all the material facts. 22. The Supreme Court in Kelvinator (supra) held that: "6. ...However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But reassessment has to be based on fulfillment of certain pre-condition and if the concept of....