Case Law Details
Crescent Construction Co. Vs. Asst. CIT (ITAT Mumbai)
Under the new provisions of section 147, an assessment can be reopened if the assessing officer has “reason to believe” that income chargeable to tax has escaped assessment; but if he wants to do so after a period of four years from the end of the assessment year, he can do so only if the assessee has fallen short of his duty to disclose fully and truly all material facts necessary for his assessment. It does not follow that he cannot reopen the assessment even within the period of four years as aforesaid if he has reason to believe that the assessee has failed to make the requisite disclosure. All that the section says is that in a case where the assessment is sought to be reopened after the period of four years, the only reason available to the assessing officer is the non-disclosure of material facts on the part of the assessee. The Act places a general duty on every assessee to furnish full and true particulars along with the return of income or in the course of the assessment proceedings so that the assessing officer is enabled to compute the correct amount of income on which the assessee shall pay tax. The position has been further clarified by the proviso itself in a case where assessment under sub-section (3) of section 143 of the Act or this section has been made for the relevant assessment year, no action shall be taken after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such year by the reason of failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose truly and fully all material facts necessary for his assessment for that assessment year. It is also noted that the scope of newly substituted (with effect from 1-4-1989 section 147 has been elaborated in Department Circular No. 549, date 31-10-1989, meaning thereby, on or after 1-4-1989, initiation of reassessment proceedings has to be governed by the provisions of section 147 to 151 as substituted (amended) with effect from 1-4-1989. Still, power under section 147 of the Act, though very wide but not plenary. We are aware that Hon’ble Gujarat High Court in Praful Chunilcd Patel: Vasant Chunilal Patel v. Asstt. CIT (supra) even went to the extent that action under main section 147 is possible in spite of complete disclosure of material facts. The primary condition of reasonable belief having nexus with the material on record is still operative. However, we are of the view, that mere fresh application of mind to the same set of facts or mere change of opinion does not confer jurisdiction to the assessing officer even under the post-1989 section 147 of the Act.
Where the assessee deposited TDS before due date for furnishing of return of income then no disallowance under section 40(a)(ia) of Income Tax Act, 1961 can be made
o far as the deposit of tax deducted at source and invoking section 40(a)(ia) of the Act is concerned, we have made an elaborate discussion in the earlier paras of this order while disposing of the appeal of the assessee for assessment year 2005-06 (ITA No. 685/Mum/2014) in favour of the assessee by holding that the amendment is retrospective in effect with effect from 1-4-2005. The Hon’ble Calcutta High Court in the case of Virgin Creations (supra) date 23-11-2011, held that the payment of TDS can be deposited in the State exchequer on or before the last date of filing of return under section 139(1) of the Act for the relevant assessment year and as such deduction has to be allowed. In the earlier assessment year, we have already discussed in the case of Piyush C. Mehta (2012) 52 SOT 27 (Mumbai) in which the Bench duly considered the decision from Hon’ble Bombay High Court, in the case of CIT v. Smt Godawaridevi Saraf (1978) 113 ITR 589 (Bom) and various other decisions including from Hon’ble Delhi High Court in the case of Rajendra Kumar (supra) and CIT v. Noresh Kumar (supra). No contrary facts were brought to our notice by the Revenue establishing that the deduction has been granted twice to the assessee. Mere claim/allegation is not enough and it has to be substantiated with facts. Therefore, respectfully, following the decisions from Hon’ble Apex Court, Hon’ble High Courts and various Coordinate Benches of the Tribunal, we find no infirmity in the conclusion of the learned Commissioner (Appeals), resultantly, the appeal of the Revenue is having no merit, therefore, dismissed.
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