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| The Tax Publishers2021 TaxPub(DT) 6571 (Bom-HC) : (2022) 440 ITR 0020 CONSTITUTION OF INDIA, 1950
Article 226 Section 147
Where there was not even a whisper that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that year and failure to disclose would render the notice issued under section 148 being held as without jurisdiction, therefore, notice issued under section 148 was invalid.
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Writ - Validity of reopening of assessment under section 147 - Notice issued after expiry of 4 years from the relevant Assessment Year - No failure to disclose fully and truly on part of assessee
Petitioner filed in this Court an application under sections 391 to 394 of the Companies Act, 1956 whereby it had sought sanction for the transfer of its bottling manufacturing undertaking in two cities to HCCBPL. The scheme of arrangement was sanctioned by High Court. Petitioner filed the return of income which disclosed total loss as a result of demerger of petitioner's bottling division. Petitioner replied and furnished reasons for filing a revised return of income. Revenue passed assessment Order under section 143(3) in which it computed total income of petitioner as 'Nil' after setting off earlier year's losses. CIT issued a show cause notice under section 263 and set aside the assessment order passed and directed Revenue to pass a fresh assessment order. After expiry of 4 years from the relevant assessment year, Revenue issued a notice under section 148. As per proviso to section 147, if assessment was being reopened after expiry of 4 years from the relevant assessment year, it will be time barred unless assessee had failed to disclose material facts that were necessary for the assessment. Held: There was not even a whisper that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that year. Failure to disclose fully and truly all material facts would render the notice issued under section 148 being held as without jurisdiction. This Court in Crompton Greaves Ltd. v. Assistant Commissioner of Income Tax, Circle-6(2) (2015) 55 taxmann.com 59 (Bombay) : 2015 TaxPub(DT) 0546 (Bom-HC) held that even if the reason for reopening does not specifically state that there was any failure on the part of petitioner to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year, it will not be fatal to the assumption of jurisdiction under sections 147 and 148. Thus, notice under section 148 was quashed.
Followed:Crompton Greaves Ltd. v. Asstt. CIT & Ors. (2015) 55 taxmann.com 59 (Bombay) : 2015 TaxPub(DT) 0546 (Bom-HC) Hindustan Lever Ltd. v. R.B. Wadkar, Asstt. CIT & Ors. (No. 2) 2004 TaxPub(DT) 1424 (Bom-HC)
REFERRED :
FAVOUR : In assessee's favour.
A.Y. :
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