TaxTMI 
TaxTMI 
2018 (5) TMI 231
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....ent proceedings invalid. In this case, the AO had completed the assessment u/s. 143(3)r. w. s. 153A of the Act, assessing the total income at Rs. 16. 26 crores. On 15/06/2012, he issued a notice u/s. 148 of the Act, as he was of the opinion that taxable income had escaped taxation. He completed the assessment, u/s. 143 (3)r. w. s. 147 of the Act, on 13/02/2014, determining the income of the assessee at Rs. 16. 48 crores. 2. Aggrieved by the order of the AO, the assessee filed an appeal before the First Appellate Authority(FAA)and made detailed submissions. It also relied upon certain case laws. After considering the available material, he held that the assessee had relied upon the case of Cargo Clearing Agency(307ITR1)of the honorable Guja....
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....tify issuing of notice u/s. 148 of the Act, that details with regard to leave encashment were filed before the AO, that leave encashment details were based on actuarial valuation, that the original assessment was completed u/s153A of the Act, that reassessment proceedings could not be initiated in 153A cases. He referred to pages 134-140 of the PB as well answers to questions 2 and 3 raised by the AO vide its letter dated 16. 10. 2009. He relied upon the case of Cargo Clearing Agency (307 ITR 1) of Hon'ble Gurarat High Court and case of Calcutta Chromotype Pvt. Ltd. (97 ITR 55) of the Hon'ble Calcutta High Court. With regard to the application filed by the assessee under rule 27 of the ITAT Rules, 1963 (Rules), the AR argued that there was....
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....isclose fully and truly all material facts necessary for his assessment of this income in the return filed u/s. 139 and in response to notice u/s. 142 (1) of the Act in course of the scrutiny proceedings. This has resulted in under assessment of income of Rs. 21, 77, 393/-. " A perusal of the notice reveal that it is a case where the original assessment was completed u/s. 143 (3) r. w. s. 153 A, that reopening was done after a period of four years, that the basis for issuing notice u/s. 148 was non-payment of leave encashment amount, that an entry in the Tax Audit Report was the reason for initiating the reassessment proceedings. Now, if fact of filing of Tax Audit Report i see s taken into consideration(Pg. 134 of the PB), it becomes cle....
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....has escaped assessment, but this does not imply that the Assessing Officer can reopen an assessment on mere change of opinion. The concept of "change of opinion" must be treated as an in-built test to check the abuse of power. Hence after April 1, 1989, the Assessing Officer has power to reopen an assessment, provided there is "tangible material" to come to the conclusion that there was escapement of income from assessment. Reason must have a link with the formation of the belief. " The AO has not proved as to how there was a mistake on part of the assessee in not disclos - ing fully and truly all the necessary facts that led to escapement of income. We would also like to mention that section 43B(f) would apply only to those cases where a....
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....tained, and below that note on the auditor's report to the shareholders in that balance-sheet, that balance-sheet and the trading and profit and loss account were in agreement with the books of accounts, that during the original assessment proceedings, as desired by the AO, a representa - tive of the company gave a list of the machineries which were sold during the relevant previous year and the officer duly considered the accounts and the statements which were produced in the course of the assessment proceedings. Deciding the matter Hon'ble High Court held as under: ".... . the learned trial judge rightly negatived the contention on behalf of the revenue based on the Explanation to section 147 of the Act that production before the In....