2023 (3) TMI 267 - HC - Income Tax

Reopening of assessment u/s 147 - Rejection of objection - huge amount of cash transaction in Bank of India - HELD THAT:- The impugned proceedings suffers from error apparent on the face of the record. Reliance placed on Anshul Jain's [2022 (10) TMI 3 - SC ORDER] case by the learned Senior Standing Counsel appearing for the Respondent is misconceived. The above judgment was a case were it was found as a matter of fact that the objections were considered. However, in the instant case this Court finds that objection have been rejected without even applying its mind to factors that are relevant and more importantly the facts stated in the counter would clearly show that the reasons furnished for reassessment suffers from error apparent on the face of the record inasmuch as admittedly reference was made to the wrong Bank and Account Number, while proposing reassessment on the basis of alleged deposits to the said account thereby vitiating the entire proceeding under Section 147.

Yet another reason which would warrant interference is the fact that the Respondent has in its counter set up a case rather material particulars, different from the reasons given for reassessment, which is impermissible. It is well settled that public orders must be tested on the basis of what is stated in the order and subsequent counter affidavit cannot improve the order as held by the Hon'ble Supreme Court in the following decisions - Commissioner of Police v. Gordhandas Bhanji . [1951 (11) TMI 17 - SUPREME COURT] and Mohinder Singh Gill v. Chief Election Commr. [1977 (12) TMI 138 - SUPREME COURT]

Applying the above decisions to the present case, this Court is inclined to set aside the impugned order, on the ground that the reasons furnished suffers from error apparent nor can the counter be called in aid to improve the impugned order. However, this would not preclude the Respondent from exercising the power of assessment, if there are reasons / circumstances which would warrant such exercise.