2021 (12) TMI 1096

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....rounds have been raised in the petition. The primary ground being (a) there has been non application of mind while granting the sanction under Section 151 of the Act; and (b) the facts as recorded in the reasons are not correct. 3. Ms. Hariya submitted that it is the settled position in law that the Assessing Officer acquires jurisdiction to issue re-opening notice only when he has reason to believe that income chargeable to tax has escaped assessment and the reasons to believe that income chargeable to tax has escaped assessment must be on correct facts. If the facts as recorded in the reasons are not correct re-opening notice could not be issued. 4. The reasons to re-open is annexed to the petition. In paragraph no. 5 it says necess....

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....t amalgamation has been mentioned which is at variance with what is given in the reasons for reopening. It is also alleged in the petition that change in shareholding pattern as recorded in the reasons for re-opening is erroneous. That has not been denied in the affidavit in reply. The reason to believe that income chargeable to tax has escaped assessment must be on correct fact. If the facts as recorded in the reasons are not correct, it is for the Assessing Officer to establish that the facts stated by him in the reason as recorded are correct. The Division Bench of this court in Ankita A. Choksey vs. Income- Tax Officer And Others [2019] 411 ITR 207 (BOM) in paragraph no. 6 and 7 has held as under : 6. It is a settled position in l....

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....oes not give the Assessing Officer a carte blanche to issue a reopening notice. The condition precedent of reason to believe that income chargeable to tax has escaped assessment on correct facts, must be satisfied by the Assessing Officer so as to have jurisdiction to issue the reopening notice. In the present case, the Assessing Officer has proceeded on fundamentally wrong facts to come to the reasonable belief/conclusion that income chargeable to tax has escaped assessment. Further, even when the same is pointed out by the Petitioner, the Assessing Officer in his order disposing of the objection does not deal with factual position asserted by the Petitioner. Thus, it would be safe to conclude that the Revenue does not dispute the facts st....