TaxTMI 
TaxTMI 
2017 (11) TMI 577
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....The impugned proceedings are challenged primarily on three grounds, namely that the notice of re-assessment dated 26.03.2003, has been issued four years after the completion of the assessment and there is no failure on the part of the assessee to disclose fully and truly primary facts and therefore, the impugned notice is barred by limitation. 3. The second grounds of challenge is that, the petitioner has furnished all necessary information for making the assessment along with return of income during the original assessment proceedings, which were considered by the assessing officer, reopening of the assessment after expiry of four years from the end of the relevant assessment year is wholly without jurisdiction. 4. The third ground of ch....
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....eopened under Section 147 of the Act. Thus, the reason for reopening being that the loss from unit three has not been adjusted while, the petitioner claimed deduction under Section 80-HH & 80-I in respect of the profit earned from unit one and two. The question would be, was this material available with the assessing officer who completed original assessment which is sought to be reopened after period of four years from the end of the assessment year. 6. I have perused the return of income filed by the petitioner for the assessment year 1996-97, in which the petitioner has clearly reported the loss for the assessment year 1996-97. Thus, this material was very much available with the assessing officer and the assessing officer while complet....
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....e assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. Unless, the condition in the proviso is satisfied, the Assessing Officer does not acquire jurisdiction to initiate any proceeding under section 147 of the Act after the expiry of four years from the end of the assessment year. Thus, in cases where the initiation of the proceedings is beyond the period of four years from the end of the assessment year, the Assessing Officer must necessarily record not only his reasonable belief that income has escaped assessment but also the default or failure committed by the assessee. Failure to do so would vitiate the notice and the entire proceedings. The relevant words in the proviso are, "....
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....ssment has been made in the background of the assessee's failure to disclose truly and fully all material facts, it is necessary for him to record that fact, and in the absence of a record to that effect, it cannot be held that a notice issued without recording such a fact is capable of being regarded as a valid notice. As to whether the material facts disclosed by the assessee are full and true is always a question of fact and unless the facts disclosed had been examined in relation to the extent of failure if any on the part of the assessee, it is not possible to form the opinion that there had been a failure on the assessee's part to truly and fully disclose the material facts. A notice issued without a record of the Assessing Of....