2020 (1) TMI 864

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....of the case are that return for Assessment Year 2005-06 was filed by the assessee on 28.10.2005 declaring loss of Rs. 41.72 crores. Thereafter, the assessment was completed under section 143(3) on 15.12.2008 wherein the loss was assessed at Rs. 40.29 crores. Later on, notice under section 148 of the Income Tax Act, 1961 was issued to the assessee on 27.03.2012 requiring the assessee to file its return of income for the assessment year under appeal. In response to the notice, the assessee stated that the original return filed may be treated as return having been filed in compliance to notice issued under section 148 of the I.T. Act. The A.O. raised the issue of loss of sale on fixed assets. The assessee stated before the A.O. that there is e....

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....e to disclose truly and correctly all material facts, therefore, proviso to Section 147 will apply. The A.O. has not pointed-out as to where is failure on the part of the assessee to disclose truly and correctly all material facts. In support of the contention, he has relied upon following decisions : 1. Asian Paints Ltd., vs., DCIT [2009] 348 ITR 452 (Bom.) 2. Indu Lata Rangwala vs., DCIT [2016] 384 ITR 337 (Del.) 3. CIT vs., Central Warehousing Corporation [2015] 371 ITR 81 (Del.) 4. Pala Marketing Cooperative Society Ltd., vs., State of Kerala [1999] 236 ITR 604 (Kerala) 5. DCIT vs., Pala Marketing Cooperative Society Ltd., [2000] 243 ITR 499 (Kerala) 6. Hindustan Lever Ltd., vs. R.B. Wadkar [2004] 268 ITR 332 (Bom.) 4.1. He....

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....see has filed copy of the reasons recorded for reopening of the assessment at page-9 of the PB which is also reproduced in the assessment order and the same reads as under : "Reasons recorded u/s.148(2) for issue of Notice u/s.148(1) of the I.T. Act, 1961. Name of the Assessee : M/s. Alcatel South Asia Ltd., 1st Floor, 5 Sikandra Road, New Delhi. PAN AACCA8667 Assessment Year : 2005-06 Previous Year : 2004-05. The scrutiny assessment of M/s Alcatel South Asia Ltd for the assessment year 2005-06 was completed in December,2008 at a Loss of Rs. 40,29,18,340/- _On perusal of record it was observed that as per P&L account, the assessee had claimed and was allowed the following deductions. i) Deduction of Rs. 1,22,67,640/- on a....

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....ich, one addition have been deleted by the Ld. CIT(A) on account of foreign exchange loss. Thus, no new factual material was found at the time of initiating the re-assessment proceedings or recording the reasons for reopening of the assessment. The A.O. on the basis of the material already available on record recorded the reasons for reopening of the assessment. Thus, assessee declared all primary facts at the stage of original assessment when assessment was completed under section 143(3) of the I.T. Act, 1961. The Hon'ble Supreme Court in the case of Indian Oil Corporation vs., ITO [1986] 159 ITR 956 (SC) held that "no case under section 148 is made-out when the facts were known all along with to the Revenue while making the original asses....

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....th return declaring nature of capital receipt, no other factual material found, therefore, proceedings under section 148 was quashed." Similar view have been taken by Hon'ble Allahabad High Court in the case of Kanpur Texel Pvt. Ltd., DCIT & Another [2018] 406 ITR 353 (All.). The Hon'ble Rajasthan High Court in the case of Vardhaman Industries [2014] 363 ITR 625 (Raj.) held that "reasons must be based on new and tangible material. Notice based on documents already on record, not valid." The Hon'ble Delhi High Court in the case of Techman Buildwell P. Ltd., vs., ACIT [2015] 370 ITR 771 (Del.) held that "Assessing Officer's omission was the sole basis of notice under section 148. Notice under section 148 not valid." Since in the present case....