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2015 (12) TMI 393 - AT - Income TaxReopening of assessment - assessee has also assailed the action of the authorities below on merits and pleaded that the additions made are totally devoid of merits and are unsustainable in law - unexplained loan - Held that:- We find as a matter of fact that the impugned 'Annexure 4' showing loan received from Shri L.K. Jain (HUF) to the tune of ₹ 47.21 lacs was annexed along with the tax audit report filed and placed before the Assessing Officer in the course of the original assessment proceedings. It is also abundantly clear from the records and the assessment order that the Assessing Officer failed to take notice of the aforesaid Annexure 4 while completing the original assessment. After completion of the original assessment, it was found that the aforesaid loan has not been reflected in the Balance Sheet and accordingly was not subject-matter of the assessment in the original proceedings. Therefore, it is clear that the view taken by the Assessing Officer that there was a failure on the part of the assessee to disclose material facts fully and truly in tune with the authenticated tax audit report cannot be faulted. It is also clear that no conscious view was taken or no opinion was formed based on the impugned Annexure 4 to the tax audit report in the original assessment proceedings. Accordingly, it is not a case for change of opinion or a case of review. Therefore, the case laws cited by the assessee are clearly distinguishable on facts. The action of the Assessing Officer cannot be held to be hit by the embargo placed as per first proviso to section 147 of the Act. Thus, the objection raised by the assessee on lack of jurisdiction is not sustainable in law. - Decided against assessee. We find that the impugned 'Annexure 4' does not reflect the name of the assessee anywhere. Therefore, when seen independent of the tax audit report, the aforesaid Annexure 4 does not show any nexus with the assessee per se. We also find that Annexure 4 has no reference in the tax audit report and thus is not an integral part of tax audit report. This also establishes on facts that there is no nexus or live link between the impugned Annexure and the tax audit report. In view of these to important features, we find no difficulty in accepting the plea of the assessee that owing to some inadvertent error 'Annexure 4' not pertaining to assessee has crept in along with the tax audit report filed. The said Annexure 4 therefore appears extraneous. In our considered view, the assessee has discharged its onus of proving that the impugned loan is non-existent by furnishing the bank statements and confirmatory letters from the parties and co-relating the same with the Balance Sheet already placed on record. The facts and circumstances of the case as noted above clearly establishes the bonafides of the plea of the assessee. In view thereof, we hold that the impugned addition under section 68 of the Act is not sustainable on facts and law. - Decided in favour of assessee.
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