Law:

Section:

Where Commissioner has not recorded anywhere that there was a failure on part of assessee so as to assume jurisdi- ction for reopening assessment, notice under section 149, should be held unlawfully issued Section 148, read with section 151, of the Income-tax Act, 1961 - Income escaping assessment - Issue of notice for - Assessment year 1990-91 - Assessee filed return along with audit report under section 44AB - Assessing Officer passed assessment order - Subsequently, Assessing Officer issued notice under section 148 after four years from end of relevant assessment year - Reasons recorded by Assessing Officer showed that he himself was not satisfied with reason for reopening assessment i.e, failure on part of assessee to make a return - Commissioner also had not examined whether reasons recorded by Assessing Officer were satisfactory or not, nor had he recorded anywhere that there was a failure on part of assessee, so as to assume jurisdiction for reopening assessment under section 147 - Whether in view of fact impugned notice had been issued without lawful exercise of jurisdiction and, therefore, it was to be set aside and quashed - Held, yes FACTS The petitioner furnished the audit report under section 44AB along with the return for the relevant assessment year. The auditors certified that the petitioner was entitled to deduction on certain portion of its income. However, the Assessing Officer disallowed a portion of the claim and passed an order accordingly. While the appeal against said disallowance was pending, the petitioner received a notice under section 154 whereby the Assessing Officer wanted to rectify and/or correct the said assessment order. The petitioner replied to the said notice for rectification and, whatever deduction was allowed under section 32AB was retained. After 4 years from the end of the relevant assessment year, a notice under section 148 was served upon the petitioner on the ground that income had escaped assessment for the relevant assessment year. In writ, the petitioner contended that in the impugned notice, there was no disclosure of any reason for the formation of belief by the officer concerned that any income chargeable to…

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