Disclosure of different due date in filed return from that claimed in reassessment proceedings amount to non-disclosure of full facts

Brief of the case:

• The ITAT Delhi in the case of ITO vs. Shree Rajeev Goenka that assessee cannot be said to make full and correct disclosure of all the facts if the return of income due date which he mentioned in return filed is different from the due date he claimed during reassessment proceedings.
• Accordingly , the claim of the assessee during reassessment proceedings that due date of filling return of income was some other than date as declared in return filed would be a case of non-disclosure of all facts during the course of assessment u/s 14 3(3) and therefore, the restriction contained in 1^st provisio to sec 147 won’t apply.

Facts of the case:

• The assessee his return of income on 27.11.2003 declaring a total income of Rs.1,82,509/-, claiming Long Term Capital Loss (LTCL) of Rs.31,34,908/-The assessment was completed under section 143(3) of the Act accepting the return filed by the assessee.
• Subsequently, the AO noticed that the assessee has filed belated return of income for the AY in question on 27.11.2003 as against the due date of 31.7.2003 (extended upto 3.10.2003) for assessment year 2003-04. Hence, as per the provisions of section 80 of the Act, the assessee was not entitled to carry forward the capital loss declared in the return of income as the return of income was filed after due date prescribed in sec 139(1) . Hence, the AO reopened the assessment by issuing notice on 26.3.2009 to the assessee.
• Assessee challenged reassessment proceedings before CIT (A) who allowed his appeal on the ground that the assessment has been reopened after expiry of four years from the end of assessment year without pointing out that there is failure on the part of the assessee to disclose fully and truly all the material facts relevant to the completion of assessment, as required under the first Proviso to Section 147 of the Act.
• Aggrieved the CIT (A) order revenue is in appeal before ITAT Mumbai.

Contention of the Assessee: