TaxTMI 
TaxTMI 
2020 (1) TMI 823
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....s new although he has failed to mention that the evidences were already produced before the assessing officer at the time of original assessment done u/s 143(3) on 23/01/2012. 3. For that the learned CIT (A) has completely ignored the fact that TDS was duly deducted and paid and proof of the same was submitted with him. 4. For that the learned Commissioner of Income Tax (Appeals) ought to have considered the merits of the case and should not have focused on technical issues. The appellant is being penalized for technical issues rather than any escapement of income. 5. For that the learned CIT (A) ought to have considered that before the service of the notice the order was passed by the learned assessing officer and he ought to have looked into the evidences produced before him because the learned assessing officer had passed his order in haste. 6. For that the reopening of the case u/s 14-Twas bad in law especially in view of the fact that the original order u/s 143(3) had already covered the point of TDS deducted and deposited u/s 194C. 7. For that the CIT (A) has erred in not considering the fact that column 27 (a) of Form 3CD of the audit report specifically mentions t....
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....he AO that the assessee has failed to disclose any material fact fully and truly at the time of original assessment and therefore the action of reopening is without any legally sound basis for invoking the provisions of section 147 of the Act. It was further alleged that the action of the AO is nothing but change of opinion on the same issue based on review of material already placed on record which is not permissible in law. It was thus alleged that the act of the AO in reopening the completed assessment after four years from the end of the assessment year is neither sustainable under main provisions of Section 147 of the Act nor on account of stringent embargo placed upon the AO under first proviso thereto. The learned AR also submitted that it is not discernible from the record as to what material facts were not disclosed fully and truly which has resulted in alleged escapement of income. It was thus contended that the AO has wrongfully assumed the jurisdiction vested under s.147 of the Act without meeting legal requirements. On merits, the learned AR for the assessee referred to the written submissions made before the CIT(A) as reproduced in para 5 of appellate order and pointe....
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....n to believe that an amount of Rs. 3,64,33,304/- [2,19,94,327 + 14438977] escaped income for which action as per 147/148 is to be initiated." 7.2. Before we look into the reasons so recorded, it will be pertinent to notice that the instant case pertains to AY 2011-12 where the assessment order was earlier framed under s.143(3) vide order dated 23/01/2011. As pointed out on behalf of the assessee and can also be seen from the assessment order itself specific inquiry about deduction of TDS on expenses was made and the assessment was framed thereupon. Thus, as per the assessment order itself, an inquiry was made on deduction of TDS. The assessment was thereafter framed wherein no disallowance was made in consequence of aforesaid inquiry. 7.3. Subsequently, a notice under s.148 of the Act has been issued after approval of the Pr.CIT under s.151 of the Act on 30.03.2017 making out a case of purported infringement of section 194C of the Act ostensibly on review of existing records. In consequence of relook at records, the AO appears to have recorded reason for re-opening the completed assessment after four years from the end of the relevant AY 2010-11 as noted in earlier paras. 7.4 I....
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....earlier after expiry of four years from the end of relevant assessment year alleging escapement of income from taxation. Therefore, the action of the AO is also required to be tested on the touchstone of embargo placed by the first proviso to section 147 of the Act. The first proviso to section 147 of the Act places additional restrictions on the AO for usurption of jurisdiction. As per the proviso, the escapement of chargeable income should be by reasons of the failure on the part of the assessee to inter-alia disclose fully and truly all material facts necessary for assessment of the assessee for the relevant assessment year. We do not find anything in the reasons recorded which goes to demonstrate that the assessee has failed to disclose any material fact relevant for assessment in the original proceedings. As a matter of fact, there is no allegation of the AO on this score in the reasons recorded as noted above. We do not find anything on record to show as to what material facts remained to be disclosed by the assessee in the original assessment proceedings. Significantly, the re-assessment order passed under s.147 of the Act also does not portray any concern of the AO on this....