TaxTMI 
TaxTMI 
2023 (6) TMI 521
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....f the case, assumption of jurisdiction in reopening the impugned assessment and passing the impugned order u/s 147, is bad in law and against the facts and circumstances of the case and more so when statutory conditions as stipulated u/s 147 to 151 have not been complied with. 2. That in any case and in any view of the matter, assumption of jurisdiction in reopening the assessment u/s 147, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, the impugned assessment order ought to have been quashed on the ground that four weeks time was not allowed between the date of disposal of the objection and date of re-assessment order in view of the several judicial decisions." 4. Since the additional grounds taken by the assessee go to the root of the matter, we decided to proceed with the same. 5. Representatives of both the sides were heard at length. Case records carefully perused and relevant documentary evidences duly considered in light of Rule 18(6) of the ITAT Rules. 6. The peculiar facts of the case are that the impugned assessment order is dated 10.03.2022. Notice u/s 148 of t....
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....iomatic that the law declared by the High Court is binding on all authorities functioning within the jurisdiction of the Court. It is not open to the AO to feign ignorance of the law declared by the Court and pass orders in defiance of it. The Bombay High Court in Asian Paints Vs DCIT (2008) 296 ITR 90 (Bom) has clearly laid down that when an assessment is sought to be reopened u/s. 148 of the Act and the objections of the assessee have been overruled by the AO, then in such a case the AO will not proceed further in the matter for a period of four weeks from the date of receipt of the order rejecting the objections of the assessee." 16. The AO has undoubtedly flaunted the procedure laid down by the Hon'ble Jurisdictional High Court thereby making the issuance of notice u/s. 148 of the Act bad in law. 16.1. Having said all that considering the facts of the case from any angles in the light of our detailed discussion hereinabove, in our considered opinion, the reassessment proceedings based on the notice issued u/s. 148 is bad in law. We, therefore, set aside the findings of the Ld. CIT(A) and quash the reassessment order made u/s. 143(3) r.w. Sec. 147 of the Ac....
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....re the basis for reopening the case pertaining to the assessment year 2007-08. Since the petitioner is stated to have filed a new return of income, he was called upon to attend the office with the information required on 13th March, 2015. The petitioner addressed a letter on 12th March, 2015 and pointed out that the communication dated 5th March, 2015 was received on 12th March, 2015, but no speaking order has been passed rejecting the objections and which is required by the law laid down in the case of GKN Driveshaft (India) Ltd. V/s. Income Tax Officer reported in (2003) 259 ITR 19 and Asian Paints Ltd. V/s. Deputy Commissioner of Income Tax & Anr. reported in (2009) 308 ITR 195 (Bom). The petitioner specifically invited the attention of the assessing officer to the directions in the case of Asian Paints (supra) and to the effect that if the assessing officer does not accept the objections to the reopening of the assessment or the reasons recorded, he shall not proceed further in the matter within a period of four weeks from the date of receipt or service of the said order on the assessee. Since the order dated 5th March, 2015 is stated to be rejecting the objections, then, the a....
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.... 351 ITR 299. The relevant findings of the Hon'ble High Court read as under: "6. We have heard the learned counsel for the parties and we feel that since this was a case of proposed reopening of assessment after four years from the end of the relevant assessment year it was incumbent upon the assessing officer to demonstrate that there was failure on the part of the assessee to fully and truly disclose all material facts necessary for its assessment. The purported reasons which we have extracted above do not even allege that there has been a failure on the part of the assessee to disclose any material fact. In fact, even in the impugned order dated 31.05.2012 there is no mention of what fact the assessee had failed to disclose which was necessary for the assessment in the original round of assessment. Failure to disclose all material facts necessary for assessment is a condition precedent for reopening of an assessment beyond the period of four years from the date of assessment. This is a pre-condition set out in the statute itself. 7. In view of the fact that this pre-condition has not been satisfied, we feel that the impugned notice dated 07.03.2012 as also ....
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....sfy the requirements of the proviso to section 147 of the Act. (Para 5) In the. light of the above discussion, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its AY under consideration, the assessment of jurisdiction on part of the AO u/s 147 of the Act after the expiry of a period of four years from the end of the relevant A.Y is without jurisdiction. Consequently, the impugned notice u/s 148 seeking to reopen the assessment u/s 147 cannot be sustained. 19. Considering the above judgment of the Hon'ble High Courts, it can be safely concluded that merely by adding a line in the reasons recorded by the Assessing Officer that the assessee had failed to disclose fully and truly all material facts, requirement of proviso to section 147 of the Act would not be satisfied for the purpose of reopening of the assessment u/s 147 of the Act. 20. Considering the facts of the case from all angles, we do not find any merit in the reopening of the assessment. Even on merits, the revenue fails and the assessee succeeds. 21. In the result, the appeal of the assessee in ITA No. 1984/DEL/2022 is allowed. ....
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....ication No. 146 "M/s Jaquar and Company Pvt Ltd. paid nearly Rs 1.5 Crore to P N Sanyal and Rinki Sanyal between September 2011 to August 2013. Furthermore, it has been admitted by Sh. P N Sanyal in his statement during the search that he was engaged in illegal liaisoning activities from which he earned commission through cash and cheque, which formed part of his unaccounted income. The ADIT (Inv.), Unit-8(2), New Delhi in his report has stated that M/s Jaquar and Company Pvt Ltd was unable to justify the genuineness of expenses incurred on Sh. P N Sanyal and Smt Rinki Sanyal. On perusal of the letter and assessment record of sh. P N sanyal and Smt. Rinki Sanyal, it is notice that the transactions were entered into by the assessee company during the F.Y. 2011-12 to F.Y. 2013-14:- Name of the party A.Y 2012-13 A. Y. 2013-14 A. Y. 2014-15 Sh. P N Sanyal 17,50,000/- 30,00,000/- 12,50,000/- Smt. Rinki Sanyal 17,50,000/- 30,35,000/- 12,50,000/- 3. Analysis of information collected/received: On perusal of above information it is clear that M/s Jaquar and Company Pvt. Ltd. has paid Rs. 25,00,000/- to Sh. P N ....
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....he above discussion made in para 5, it is evident that the assessee has failed to establish the delivery of service by Sh. P.N. Sanyal and Smt. Rinki Sanyal. Further, there is no contract between the assessee and the two parties. Hence, it is clear that the amount of Rs. 25,00,000/- has escaped assessment. In view of the above, I have reasons to believe that the case is fit case for reopening by issuing notice u/s 148 of the Income Tax Act, 1961 for the A.Y. 2014-15, since an amount of 25,00,000/- relevant to A. Y. 2014-15 has escaped assessment 7. Escapement of income chargeable to tax in relation to any assets located outside India. N.A. 8. Findings of the AO on true and full disclosure of the material facts necessary for assessment under Proviso to section 147: It is true that the assessee has filed a copy of annual report and audited P&L a/c and balance sheet alongwith return of income where various information/material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. It is pertinent to mention here that even though the assessee has pro....