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From the facts on records, it is apparent that the impugned notice under section 148 has been issued after the expiry of a period of four years from the end of the relevant assessment year in a case where earlier an assessment had been framed under section 143(3) of the Act. Under the circumstances, the proviso to section 147 would be attracted.
Once the assessment was reopened to investigate the purchase of various lands then the Assessing Officer was duty bound to make enquiries to examine the purchase of these land as well as the sources for the same. The Assessing Officer has simply issued notice under sections 142(1) and 143(2) which is standard for format of the notice.
In the present case, we notice that in two out of four reasons recorded by the Assessing Officer for reopening the assessment, he stated that he need to verify the claims. In the second ground, he had recorded that admissibility of the bad debts written off required to be verified. In the fourth ground also, he had recorded that admissibility of royalty claim was required to be verified.
The assessee had disclosed full details in the Return of Income in the matter of its dealing in stocks and shares. According to the assessee, the loss incurred was a business loss, whereas, according to the Revenue, the loss incurred was a speculative loss. Rejection of the objections of the assessee to the re-opening of the assessment by the Assessing Officer vide his Order dated 23rd June, 2006, is clearly a change of opinion. In the circumstances, we are of the view that the order re-opening the assessment was not maintainable.
It is clear that for invoking the proviso to section 147 beyond the period of four years, there must be failure on the part of the assessee to either make a return under section 139 or in response to a notice under section 147/148 or to disclose fully and truly all material facts necessary for the assessment for that assessment year.
It is generally seen in the reassessment proceedings u/s 147 of Income Tax Act, 1961, the assessing officers tend to make inquiries and ask questions even at the start of the reassessment proceedings which are totally unconnected to income that is believed to have escaped assessment in the reasons recorded for reassessment proceedings.
In terms of the proviso to Section 147of the said Act the jurisdiction to reopen assessments already completed under Section 143(3) of the said Act, after the period of four years from the end of the relevant assessment year can only be exercised on the cumulative satisfaction of two conditions precedent as under: 1. There must be a reasonable belief on the part of the officer that income has escaped assessment; and 2. That there must be a failure on the part of the petitioner to fully and truly disclose all material facts necessary for assessment.
It appears that all facts were available on record and according to the respondents was only erroneously granted. This is a clear case of review of an order. The application of law or interpretation of a statue leading to a particular conclusion cannot lead to a conclusion that tax has escaped assessment for this would then certainly amount to review of an order which is not permitted unless so specified in a statue.
We may also notice that the proviso to Section 147 of the Act is fully applicable as the assessee had disclosed all the materials facts at the time of original assessment. Even if the materials/evidence was not enclosed with the return, full and true details/material was disclosed during the course of the original proceedings. The turnover or sales made to DMRC has not been disputed.
Ultimately the assessing officer was of the opinion that a firm, which had the capacity to lend an amount of Rs. 71,50,000/- that too, to one of its partners or others is reasonably presumed to have the taxable income and if the assessee had never disclosed its expenditure or otherwise earlier and in such circumstances, if the officer records that he has reason to believe that assessee had taxable income and a non-filing of the return is not merely suspicion and therefore in bringing to tax such amount by re-opening.
