Case Law Details
Usha Exports Vs ACIT (Bombay High Court)
The first contention raised by Dr. Shivram regarding the absence of statement regarding petitioner’s failure in the reasons is correct. The reasons supplied along with the impugned notice, which are reproduced above, contain no assertion there was any failure of the petitioner to disclose fully and truly all material facts necessary for the assessment. This omission can be a ground to set aside the Reassessment notice. Pursuant to the reasons given along with first reopening notice dated 29 September 2012, the Petitioner had supplied all the material regarding the very same allegations against the Petitioner and the same were examined by the Assessing Officer. All the material was placed before the Assessing Officer by the Petitioner. Acting upon this material, the Assessing Officer had, in fact, made certain additions. Therefore, it cannot be said that there was a failure by the Petitioner to disclose all material facts fully and truly. In the circumstances, the jurisdictional requirement to reopen the assessment proceeding after four years is not present. Neither it has been alleged.
Dr. Shivram then submitted that the foundation of the first reopening notice and the second notice is the same. That is the issue of bogus purchases and accommodation of entries and that there is a clear change of opinion by the Assessing Officer. He submitted that, in the reasons supplied along with first reopening notice, the issue of bogus accommodation of entries regarding purchases was discussed. The reasons given for second reopening notice reproduced above also refer to the said fact. The reasons also refer to a decision of the Supreme Court in the case of M/s.N.K.Proteins Ltd. (2017-TIOL-23-SC-IT v. DCIT ). Even this decision was before the Assessing Officer in the proceeding pursuant to first reopening notice. The Petitioner, along with its objections, placed explanatory note as to how the said decision of the Supreme Court in M/s.N.K.Proteins did not apply to the facts of the case. Therefore, this aspect was also considered when the proceeding under the first reopening notice was conducted. In the circumstances, the contention of the Petitioner that the impugned reopening notice is issued only on mere change of opinion will have to be accepted.
FULL TEXT OF THE HIGH COURT ORDER / JUDGEMENT
By this petition, the Petitioner challenges the notice dated 28 March 2019 seeking to reopen the assessment for the assessment year 2012-13, and the order dated 4 September 2019 disposing of the objections raised by the Petitioner to the said notice.
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