Home › › Page 5

Search Results For: Reopening

This section is now closed. Click here for new judgements


Posted on by editor — 1 Comment ↓
COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: April 7, 2015 (Date of pronouncement)
DATE: April 13, 2015 (Date of publication)
AY: 2010-11
FILE: Click here to view full post with file download link
CITATION:
S. 147: Reopening (even of s. 143(1) assessment) on the ground that a specific aspect requires verification is not permissible

In the present case, the AO does not state that any income chargeable to tax has escaped assessment. All that the Revenue desires is verification of certain details and pertaining to the gift. That is not founded on the belief that any income which is chargeable to tax has escaped assessment and hence, such verification is necessary. That belief is not recorded and which alone would enable the Assessing Officer to proceed

Read more ›

Posted on by editor — 1 Comment ↓
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: March 26, 2015 (Date of pronouncement)
DATE: April 8, 2015 (Date of publication)
AY: 2007-08
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 148: The notice should not be in a standard format but indicate why s. 147 has been resorted to. The term "failure to disclose material facts" has a specific legal connotation. The non-disclosure has to be of a "material fact" to attract s. 147

When the Revenue alleges failure to make full and true disclosure of material facts, then, the term failure has some specific legal connotation. Here, material facts are pertaining to the expenses under the head “management fees”. It is apparent that the words employed are material facts. It is not just facts but material facts. The word “material” in the context means “important, essential, relevant, concerned with the matter, not the form of reasoning” (see Oxford Dictionary Concise Eighth Edition). Just as disclosure of every fact would not suffice but for proceeding under section 147 non disclosure ought to be of a material fact

Read more ›

Posted on by editor — 1 Comment ↓
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: March 25, 2015 (Date of pronouncement)
DATE: March 31, 2015 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 148: If the recorded reasons show contradiction and inconsistency it means necessary satisfaction in terms of the statutory provision has not been recorded at all. The Court cannot be called upon to indulge in guess work or speculate as to which reason has enabled the AO to act in terms of s. 147

The Court cannot be called upon to indulge in guess work or speculate as to which reason has enabled the Assessing Officer to act in terms of this section. If more than one reason is assigned as in this case then the Court can sustain the notice only if it is of the opinion that an erroneous reference to a statutory provision has been made but still there is an income chargeable to tax which has escaped assessment and on account of which issuance of notice is justified. Which ground is sufficient to sustain the notice is something which must be indicated in clear terms and should not be a matter of speculation or guess work

Read more ›

Posted on by editor — No Comments ↓
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: March 13, 2015 (Date of pronouncement)
DATE: March 31, 2015 (Date of publication)
AY: 1997-98
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 148: Failure to comply with the procedure prescribed in G.K.N. Drive Shaft (India) Ltd. vs. ITO 259 ITR 19 (SC) renders the assessment order invalid & void ab initio

The AO was required to first decide the objection of the assessee filed u/s 148 and serve a copy of the order on assessee. And after giving some reasonable time to the assessee for challenging his order, it is open to him to pass an assessment order. Since such compliance has not been made by the Assessing Officer in the present case, the assessment order is not valid and is void ab initio

Read more ›

Posted on by editor — 1 Comment ↓
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: March 11, 2015 (Date of pronouncement)
DATE: March 27, 2015 (Date of publication)
AY: 2000-01
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 148: If the assessee does not ask for reasons and file objections before the AO, he is not entitled to challenge the reopening proceedings

Law does not provide or mandate that the Assessing Officer shall suo motu shall supply the copy of those ‘reasons to believe’ to the assessee. It is for assessee and if assessee chooses to ask for reasons then he/she can file objection thereto. Only when such objections are filed, it becomes the duty of the Assessing Officer to dispose of all those objections first by passing a speaking order and if the objections are rejected then it gives a cause to the assessee to challenge such order by filing an appropriate writ

Read more ›

Posted on by editor — No Comments ↓
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: January 20, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2009-10
FILE: Click here to view full post with file download link
CITATION:
S. 147: Reopening an assessment on the ground that there is need of an inquiry which may result in detection of an income escaping assessment is not valid

The important point is that even though reasons, as recorded, may not necessarily prove escapement of income at the stage of recording the reasons, such reasons must point out to an income escaping assessment and not merely need of an inquiry which may result in detection of an income escaping assessment

Read more ›

Posted on by editor — No Comments ↓
COURT:
CORAM: ,
SECTION(S): , ,
GENRE:
CATCH WORDS: ,
COUNSEL:
DATE: February 25, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2002-03
FILE: Click here to view full post with file download link
CITATION:
S. 147/151: Merely stating "Approved" is not sufficient sanction of CIT and renders reopening void

A simple reading of the provisions of Sec. 151 (1) with the proviso clearly show that no such notice shall be issued unless the Commissioner is satisfied on the reasons recorded by the AO that it is a fit case for the issue of notice which means that the satisfaction of the Commissioner is paramount for which the least that is expected from the Commissioner is application of mind and due diligence before according sanction to the reasons recorded by the AO

Read more ›

Posted on by editor — No Comments ↓
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS: ,
COUNSEL:
DATE: March 13, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2003-04
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 151: Sanction of CIT instead of JCIT renders reopening void. The error cannot be saved u/s 292BB

Since the approval was not obtained from the competent authority, notice issued under section 148 of the Act is void ab-initio and the assessment framed consequent thereto is not a valid assessment. The error is fatal and cannot be saved under section 292BB

Read more ›

Posted on by editor — 1 Comment ↓
COURT:
CORAM: ,
SECTION(S): , ,
GENRE:
CATCH WORDS:
COUNSEL: ,
DATE: January 28, 2015 (Date of pronouncement)
DATE: February 24, 2015 (Date of publication)
AY: 2005-06
FILE: Click here to view full post with file download link
CITATION:
S. 147: S. 143(3) assessment order is not a scrap of paper & AO is expected to have applied his mind. Reopening on ground of "oversight, inadvertence or mistake" is not permissible

The argument that the AO has been careless in bringing to tax a particular amount which is chargeable to tax and that the Revenue should not be precluded from issuing notice u/s 148 overlooks the fact that power to reopen is not a power to review an assessment order. At the time of passing assessment order, it expected of the AO that he will apply mind and pass an order. An assessment order is not a mere scrap of paper. To accept the submission of the department would mean to negate the well settled position in law as stated by the Supreme Court in CIT Vs. Kelvinator of India Ltd 256 ITR 1 (Delhi)(FB) that the concept of ‘change of opinion’ brought in so as to have in built test to check abuse of power

Read more ›

Posted on by editor — 4 Comments ↓
COURT:
CORAM: , ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: July 20, 2012 (Date of pronouncement)
DATE: February 19, 2015 (Date of publication)
AY: 2004-05
FILE: Click here to view full post with file download link
CITATION:
S. 147: Verdict of Bombay High Court in The Indian Hume Pipe Co Ltd vs. ACIT 348 ITR 439 that “full & true disclosure of material facts” means “specific” disclosure of “each” fact nullified

We make it clear, that on the validity of Notice under Section 148 of the Income Tax Act, 1961, it would be open to the assessee as well as the Department to put forth their respective contentions before the Appellate Authority and the Appellate Authority will decide this issue also along with other issues without being influenced by the observations made by the High Court in the impugned order

Read more ›