AI Drafter 
TaxTMI 
TaxTMI 
2019 (10) TMI 1611
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....er. 2. For the sake of convenience, the facts leading to the filing of the Writ Petition in W.P.(MD)No. 19202 of 2018 are taken into consideration for deciding the issue at hand. 3. The Writ Petition in W.P.(MD)No. 19202 of 2018 challenges the order passed by the first respondent in PAN:AADCA9414C/ACIT/TRY/2011-12, dated 26.07.2018 along with notice in PAN:AADCA9414C, dated 31.03.2018, issued under Section 148 of the Income Tax Act, 1961, for the assessment year 2011-2012. 4. The petitioner filed his original return on 29.09.2011. Thereafter, vide F.No. ACIT/CC-2/2013-14, dated 14.10.2013, further details were sought for by the second respondent, which, he submitted on 26.10.2013 and 09.11.2013. In that letter, it is disclosed as to which are the companies holding shares above 10%. The petitioner has disclosed the allotment of shares, opening share capital, share capital raised during the year, closing share capital, total turnover, gross profit, net profit and all other details as required by the second respondent. He filed Form 2 to disclose all the details showing the shares allotted to other persons above 10%. After considering all these details, the second respondent ....
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....ers of coal, and other services to over invoice that charges so as to receive kickbacks in personal names and Dalmia Group is in the habit of booking bogus bills in the accounts. All these reasons are culminated in the initiation of proceedings under Section 148 and it is observed in closing paragraph as under: "8. It is surprising as to why the Dalmia Bharat Ltd., paid 2.4 times to KKR for the buyback of its investment of Rs. 500 crores in 2010 amounting to approx. Rs. 1218 crores. As the transaction mentioned above is important due to the sensitivity it attracts and for the requirement of deep digging of data to retrieve the final information through the means of exchange of information forum the issue needs to be relooked through reopening of the case for reassessment of Dalmia Cement Bharat Ltd., Dalmia Bharat Ltd., Dalmia Bharat Enterprises Ltd. and Avnija Properties Ltd. 9. Another allegation pertains to the Dalmia Group investing around Rs. 5000 crores by way of capital expenditure on setting up cement manufacturing facility and various part of the country in "last 4 years". As the TEP was received in F.Y. 2016-17 in the office of DGIT (Inv.)....
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....ired documents are given, it is for the Assessing Authority with due diligence, to mention, what is not disclosed and the definite reason to arrive at a decision as to the escaped assessment. It cannot be based on the information generally known by believing or on wild belief. In support of his contention, he would rely on the following judgments: (1) Asianet Star Communications (P) Ltd. vs. ACIT (2019) 106 Taxmann.Com 293 (Mad-HC); (2) Sterlite Industries (India) Ltd. vs. ACIT (2008) 305 ITR 339 (Mad HC); (3) Fenner (India) Ltd. vs. DCIT (2000)241 ITR 672 (Mad HC); (4) CIT vs. Schwing Stetter India P. Ltd. (2015) 378 ITR 380 (Mad HC); (5) NuPower Renewables (P.) Ltd. vs. ACIT (2019) 104 Taxmann.com 307 (Bom HC); (6) CIT vs. S & S Power Switchgear Ltd. (2018) 92 Taxmann.com 429(Mad); (7) PCIT v. Manzil Dineshkumar Shah (2018) 406 ITR 326 (Guj); (8) Krupesh Ghanshyambhai Thakkar vs. DCIT (2017)77 Taxmann.com 293(Guj HC); (9) CIT vs. Kelvinator of India Limited (2010) 320 ITR 561 (SC); (10) Rubix Trading vs. ITO [W.P. No. 3130 of 2018, dated 20.12.2018] (Bom HC); (11) CIT vs. Usha Inter....
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..... Secondly, on the point of limitation, the learned Senior Counsel would draw the attention of this Court to proviso to Section 147, which contemplates only three circumstances in which the assessment can be re-visited within four years i.e., (a) failure on the part of the assessee to make a return under Section 139; or (b) in response to a notice issued under sub-section (1) of section 142 or section 148; or (c) to disclose fully and truly all material facts necessary for his assessment, for that assessment year. 9. The learned Senior Counsel would further submit that in respect of required things, namely (a) and (b), the assessee has filed his return under Section 139 and he has filed his reply in response to the notice issued under Section 142 as well as Section 148. 10. The only issue, which is to be decided, is as to whether the assessee has disclosed fully and truly what material facts necessary for his assessment, for that assessment year or not. 11. In that aspect, the petitioner would submit that he has submitted all the necessary details in Form-2 with all other attachments including the reply given to the notice issued under Section 142. Agains....
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.... to be quashed. 14. The learned Senior Counsel would also contend that once in a concluded assessment where the Assessing Authority discovers undisclosed material evidence and has a reason to believe that there is an escaped assessment, then only, he can initiate proceedings. Whereas, in the cases at hand, the impugned proceedings are based on wild belief without any materials. 15. In response to the arguments, the learned Additional Solicitor General of India appearing for the respondents would contend that after issuance of notice under Section 148, the petitioner has not chosen to challenge the same in time. But, whereas, he has submitted himself to the proceedings and filed returns, as directed by the authorities and also filed his objections. Once he submitted himself to the jurisdiction, he shall await the orders of the Assessing Authority and he cannot rush to the Court without awaiting the orders. Therefore, once the matter is subjudice before the fact finding authority, challenging the notice issued under Section 148 is without cause of action and hence, the Writ Petitions are not maintainable. 16. In support of the contention, he would rely on the judgment of the....
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....sclosed full details in the Return of Income in the matter of its dealing in stocks and shares. According to the assessee, the loss incurred was a business loss, whereas, according to the Revenue, the loss incurred was a speculative loss. Rejection of the objections of the assessee to the re-opening of the assessment by the Assessing Officer vide his Order dated 23rd June, 2006, is clearly a change of opinion. In the circumstances, we are of the view that the order reopening the assessment was not maintainable. 27. The Supreme Court, in Commissioner of Income Tax v. Corporation Bank [254 ITR 791] has had occasion to consider a similar issue holding as follows: Turning attention to the first question as regards the provisions under Section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary....
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....ne into the question whether an order of assessment must contain detailed discussion in regard to a specific issue in order that the Assessing Authority may be said to have initially 'considered the issue'. The Bench cites the provisions of section 114(e) of the Indian Evidence Act 1872 to bring home the position that all acts performed by a Judicial Officer in the discharge of his regular functions would be legally presumed to have been properly and regularly performed and executed. Thus, even in cases where there is no discussion in regard to specific issues, if it is established by the assessee that all material relevant and germane to that issue were available before the Assessing Officer, easily discernible and part of the record, reassessment is impermissible. Then again, it does not stand to reason that an officer, once convinced by the submissions of an assessee, will proceed to devote time to recording is agreement in a detailed and reasoned fashion. The legitimate and reasonable expectation is that a detailed and speaking order is passed in cases where he differs and dissents from the stand of the assessee. On this score, the arguments of Mr. J. Narayanasamy in th....
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....at the judgment referred to by the High Court in CIT v. Chhabil Dass Agarwal [2013] 357 ITR 357/217 Taxman 143/36 taxmann.com 36, does not apply to the case. Therefore, a writ against the notice issued under Section 148 is maintainable. 23. Insofar as the contention of the respondents that the assessee shall await for the orders to be passed by the Assessing Officer, as held by the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd., vs. Income Tax Officer and others reported in 2003(1) SCC 72, is concerned, Paragraph No. 5 of the order, the Supreme Court has observed as under: "5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed i....