TaxTMI 
TaxTMI 
2005 (8) TMI 63
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.... Circle 24(2), Piramal Chambers, Bombay, to provide or disclose reasons recorded by him prior to issuance of the notices for reopening the assessment. No reasons were disclosed or supplied by the Assistant Commissioner of Income-tax in spite of request letter dated June 8, 1991. Consequently, the petitioner was left with no option but to invoke the writ jurisdiction of this court under article 226 of the Constitution of India to challenge the action of reopening and the notices issued by the respondent-Income-tax Department to the petitioner-assessee. This court was pleased to issue rule in the above petition on July 15, 1991 with interim relief in terms of prayer clause (d). On being noticed, the respondents appeared and filed their ....
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...., if the power to reopen is to be exercised by the Assessing Officer after the period of four years from the end of the assessment year, then it is incumbant on the part of the Department to allege failure on the part of the assessee to disclose material resulting in escapement of income. He further submits that no reopening is permissible on the basis of a change of opinion. Mr. Andhyarujina, in order to substantiate his submissions advanced, placed reliance on a number of judgments of this court including that of Hindustan Lever Ltd. v. R.B. Wadkar, Asst. CIT (No. 1) [2004] 268 ITR 332 and pressed into service the observations of this court quoted here-in below: "The reasons recorded by the Assessing Officer nowhere state that there....
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....act or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing an affidavit or making an oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the court, on the strength of the affidavit or oral submissions advanced." Mr. Andhyarujina, also relied upon another judgment of this court in the case of Caprihans India Ltd. v. Tarun Seem, Deputy CIT [2004] 266 ITR 566. He ....
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....s from the end of the relevant assessment years. This court in the case of IPCA Laboratories Ltd. [2001] 251 ITR 416 and in the case of Bhor Industries Ltd. [2004] 267 ITR 161 (Bom) has held that notice for reopening of the assessment cannot be issued after a period of 4 years unless the escapement of income is on account of failure on the part of the assessee to disclose fully and truly all material facts. It has been further held that the Explanation to section 147 of the Income-tax Act has to be read with section 148 of the Income-tax Act in its entirety. In the light of the aforesaid decisions, in the present case, there being no failure on the part of the assessee to disclose fully and truly all material facts, the impugned notices iss....
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....arned counsel for the Revenue could not justify the reopening based on the material available on record. He fairly conceded that reopening is beyond the period of four years from the end of the assessment year and no circumstances justifying such reopening beyond four years is available on record. Since the reopening is beyond the period of four years, in the absence of any material to show that there is failure on the part of the assessee to disclose fully and truly all material facts, the reopening of the assessment cannot be sustained. The reasons recorded for reopening the assessment do not state that there is any failure on the part of the assessee to disclose fully and truly any material facts. The mere fact that a protective assessme....