TaxTMI 
TaxTMI 
2006 (9) TMI 121
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....ne (for short "SEEPZ") and another establishment situated in the Fort area of Mumbai which is outside the SEEPZ area. The petitioner is seeking to challenge the notice dated March 1, 2006 issued by the Assistant Commissioner of Income-tax under section 148 of the Income-tax Act, 1961 seeking to reopen the assessment for the assessment year 2000-01. The petitioner had filed their return for this year on November 28, 2000, returning a total income of Rs. 22,63,320. The return was accompanied by the computation of income, audited accounts under the Companies Act, 1956, audited report as required under section 44AB of the Income-tax Act, 1961, report under section 80HHE of the Income-tax Act and separate profit and loss account and balance s....
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....r should have been Rs. 10,95,89,191 and not Rs. 9,85,43,319. The petitioner filed an appeal against the order dated December 9, 2004 passed under section 154 to the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) entertained this appeal filed by the petitioner and by her order passed on November 2, 2005 cancelled the aforesaid order dated December 9, 2004 passed under section 154. The petitioner thought that in view of this order in fact the chapter was closed but that was not so. Now, the petitioner has received a notice dated March 1, 2006, seeking to reopen the assessment under section 148 of the Income-tax Act and it is this notice which is sought to be challenged in the present petition. However,....
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....ase, if section 147 was to be applied, the reopening had to be done within four years. In the present case, admittedly, it is beyond four years and, therefore, the proviso to section 147 will get attracted. This proviso lays down that such a reopening would be permissible if it is for the failure on the part of the assessee to make a return under section 139 or in response to a notice under section 142(1) or section 148 or failure to disclose fully and truly all material facts necessary for the assessment. In the present case, he points out that the petitioner had disclosed all the material facts and as to how it had sought the benefit under section 10B of the Income-tax Act for the SEEPZ unit and under section 80HHE for the Fort unit. This....
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....me transaction from another point of view. This could not be said to be something for which the assessee was responsible or that he has not disclosed the material facts. Similarly, as far as the second ground goes, while looking at the account of the retainer fees, the Department had alleged that the petitioner had allocated only 8.86% to the SEEPZ unit instead of 18.30%. According to Mr. Irani, the petitioner would have benefited if they were to allocate 18.30% to SEEPZ but in any case this is again a matter of calculation and the figures were available to the respondents on the record which the petitioner had submitted. Mr. Irani drew our attention to the judgment of the apex court reported in Indian Oil Corporation v. ITO [1986] 15....
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....lly and truly all material facts necessary for the assessment. Therefore, an obligation is to disclose facts; secondly, those which are material; thirdly, the disclosure must be full and fourthly, true. What facts are material and necessary for assessment will differ from case to case. In every assessment proceeding, for computing or determining the proper tax due from the assessee, it is necessary to know all the facts which help the assessing authority in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inferences as to certain other facts. But on the primary facts, i....
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....was that the petitioner had not allocated the retainer fees correctly to the two units and it shows lesser percentage for the SEEPZ unit. He submitted that in such a situation if the income has escaped, the officer is entitled to reopen the assessment. We have noted the submissions of both counsel. The submission of Mr. Kotangale could have been accepted, if there was any failure on the part of the petitioner-assessee in giving appropriate information. His reliance on the judgment of the Punjab and Haryana High Court in the case of Pal Jain v. ITO reported in [2004] 267 ITR 540 is also misplaced. That was a case where subsequent information had been received by the Department and, therefore, the reopening of the assessment was upheld by ....