Case Law Details
State Bank of India Vs DCIT (ITAT Mumbai)
On perusal of the reasons recorded by AO in the instant case reveals that there was no new tangible material to reopen the assessment for AY. 2008-09 which has already undergone scrutiny assessment u/s 143(3) of the Act dated 28.12.2010. Therefore, first proviso to Section 147 of the Act would come into play, and therefore the additional condition precedent that while recording the reasons recorded for reopening of the assessment has to not only state his reasons to believe escapement of income, he has to also additionally record and specify what was the failure on the part of the assessee to disclose truly and wholly the relevant fact which facilitated the escapement of income. After going through the reasons recorded (supra), we note that the AO has culled out the facts that has been already stated in the Tax Audit Report, balance-sheet, profit and loss account and other information given by the assessee during the earlier assessment proceedings.
ITAT find that there is no new provisions from any outside agencies. Once the assessee’s return of income has already undergone scrutiny assessment u/s 143(3) of the Act and four (4) years has elapsed, then AO has to specify/spell out the relevant fact which has not been disclosed by the assessee during the original assessment/return of income/balance-sheet/profit and loss account/tax audit report. Failure of the AO, not to specify it vitiate the reasons recorded. Mere bald allegation that the assessee failed to disclose truly and complete facts necessary for assessment is not sufficient. Even though, we during hearing we asked the Ld. DR to point out any new fact which has not been disclosed by the assessee during the original assessment u/s 143(3) of the Act, he could not do so.
No new facts are emerging from the reasons recorded to justify re-opening the assessment of AY 2008-09. And the law is settled; we can only look into the reasons recorded as such (stand- alone basis). Nothing can be added or subtracted. We cannot infer anything which is not available in the reasons recorded. Therefore, in the light of the discussion as well as judicial precedent cited (supra) we find that the reasons recorded does not muster the requirements of the law as necessary for reopening of the assessment.
Coming to the averments of the AO that the assessee had filed revised return after the intimation was received u/s 143(3) of the Act to justify the re-opening, we note that the AO while framing the assessment u/s 143(3) of the Act dated 28.12.2010 has taken into consideration the revised return of income filed by assessee. Even it there is any error/mistake on the part of the predecessor AO while doing so, it cannot give power to the present AO to review the action of the earlier AO. This power is vested only with the PCIT/Ld. CIT u/s 263 of the Act and cannot be used to reopen the assessment. Therefore, we are inclined to accept the grounds of appeal raised by the assessee and hold that the reopening is bad in law.
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