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2013 (1) TMI 373 - HC - Income TaxUnaccounted investments - survey u/s 133A - statement of confession on additional income from the Managing Partner - Jurisdiction power u/s 263 by CIT(A) as felt that the additional income disclosed for each each year should have been taken into account separately while making the assessment - set aside the assessment and directed the AO to re-frame the assessment afresh - reopening of assessment - Held that:- There was a change of incumbent in the office of the Assistant Commissioner twice. The ACIT who conducted the survey, got transferred and the notice under Section 143(2) was issued by another Assistant Commissioner. He also got transferred out. The assessment was completed by his successor, the Deputy Commissioner of Income Tax. Moreover, it is stated that consequent to the survey, the assessee informed the ACIT of their willingness to offer additional income of Rs.1.5 Crores to cover up the unexplained investments and this offer was in addition of the projected income of Rs.1 Crore. There is no mention that it is subject to verification of accounts which is the case set up by the appellant now. The request was only that not to again tax the income in the hands of the partners and that the same should not result in complication in sales tax cases. Thereafter, a letter was issued by the appellant stating that the offer of additional income during the survey was mistaken and the correct investment would not exceed Rs.35 lakhs. It is also stated that the income has escaped assessment, in that, the disclosure made was neither considered by the new incumbent assessing officer, nor disclosed by the assessee in the return filed and there was failure to declare the true and full facts. The matter relates to the assessment year 2006-2007 where the assessment was completed on 22.12.2008. Ext.P6 impugned notice(reopening assessment) is dated 09.12.2011, i.e. issued after the expiry of four years from the end of the assessment year. As held in Sowdagar Ahmed Khan v. Income-Tax Officer, Nellore (1967 (11) TMI 10 - SUPREME COURT) the duty is not discharged by production of the books of account or other evidence and the assessee has a duty to bring to the notice of the officer the particular items in the books of account or the portions of the documents which are relevant. Established fact of escaped income, is not the legal requirement at the initiation stage as held by the Apex Court above. It is in the realm of subjective satisfaction.Therefore, it may not be justified in this proceedings to hold that Ext.P6 notice is without jurisdiction because the learned Single Judge has permitted the appellant to file objections to Ext.P6 notice and it is for the assessing officer to take a decision after considering the objections. It is not open for this court to veto further action pursuant to Ext.P6 on the basis of the Writ Petition filed by the appellant. This is a case where the appellant had not cared to file any objection to Ext.P6. It was in the exercise of discretionary jurisdiction that the Single Judge permitted the appellant to file objections. In fact, the stand of the the Revenue is that the objections will certainly be considered in such circumstances, we only observe that the objections which the appellant has filed must necessarily be considered and reasons must be given but do not deem it necessary that we should direct that a separate order must be passed.
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