TaxTMI 
TaxTMI 
2023 (2) TMI 596
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....31st July, 2013 for the assessment year 2013-14 declaring a total income of Rs.11,39,990/- after claiming deduction of Rs.2,62,10,090/- under Section 80P of the Act. According to the Petitioner in the computation of income, the Petitioner had explained the deduction of Rs.2,62,10,090/- under Section 80P of the Act on the following basis, [Rs.2,61,60,090/- under Section 80P(2)(d) and Rs.50,000/- under Section 80P(2)(c) of the Act]. It is stated that the return of income was selected for scrutiny and a notice under Section 143(2) of the Act was issued. Subsequently, a notice under Section 142(1) of the Act was issued calling for various details from the Petitioner including computation of income, annual accounts, bank statements, details of various deductions etc. A reply to the said notice was submitted by the Petitioner and finally the deduction came to be allowed in the order of assessment under Section 143(3) of the Act dated 03rd March, 2016. What needs to be highlighted here is that while the A.O. in the order of assessment made certain disallowances, it allowed the deduction under Section 80P amounting to Rs.2,62,10,090/- in the order of assessment. Subsequently, a notice un....
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....the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment. 5. In this case more than four years have lapsed from the end of assessment year under consideration. Hence, necessary sanction from the Pr. CIT-19, Mumbai to issue notice u/s 148 of the I.T. Act, 1961 is hereby sought as per the provisions of Section 151 of the Act." 4. Objections to the reopening were filed by the Petitioner highlighting the fact that there was no failure on the part of the assessee to disclose fully and truly all material facts before the Assessing Officer (A.O.) during the assessment proceedings under Section 143(3) of the Act. It was also stated by the Petitioner that there was no new tangible material with the A.O. based upon which the assessment could be reopened and that a reappraisal of existing material would amount to review and change of opinion, which was impermissible in view of the various pronouncements on this subject. It was highlighted that the A.O. was very much aware of the claim of the Petitioner for deduction under Section 80P and had allowed the same while framing the assessment. The objections filed by the Petitioner we....
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.... reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. This Court in the aforementioned judgment proceeded to allow the petition and set aside the notice impugned therein only on this ground that the jurisdictional requirement of proviso to Section 147 of the Act had not been complied with by the A.O. In the judgment supra, this Court had noticed that the A.O. had nowhere stated that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for the assessment of that assessment year, without touching upon any of the other grounds. 8. In the present case although the A.O. has recorded in the reasons that there was failure on the part of the assessee to disclose fully and truly material facts, i....
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....-tax (Appeals) while recording reasons under Section 147 he could have said even in the original orders of assessment. Thus, it is a case of mere change of opinion which does not provide jurisdiction to the Assessing Officer to initiate proceedings under Section 147 of the Act. It is also equally well settled that if a notice under Section 148 has been issued without the jurisdictional foundation under Section 147 being available to the Assessing Officer, the notice and the subsequent proceedings will be without jurisdiction, liable to be struck down in exercise of writ jurisdiction of this court. If "reason to believe" be available, the writ court will not exercise its power of judicial review to go into the sufficiency or adequacy of the material available. However, the present one is not a case of testing the sufficiency of material available. It is a case of absence of material and hence the absence of jurisdiction in the Assessing Officer to initiate the proceedings under Section 147/148 of the Act." 11. Even in the present case there appears to be no tangible material with the A.O. as can be seen from the reasons recorded and that the reference was made only to the recor....