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2020 (6) TMI 469 - AT - Income TaxReopening of assessment - reopening stating that four years have elapsed - reopening on the basis of a report / information made available by Income Tax Investigation Wing, Kolkata - addition u/s 68 as unexplained cash credit - HELD THAT:- The settled position of law is that if an assessment for any year has been completed u/s 143(3) or u/s 147, then no action shall be taken u/s 147 after the expiry of 4 years from the end of relevant assessment year unless income chargeable tax has escaped assessment by reason of the failure on the part of the assessee. That is, there is no allegation that the assessee has failed to disclose fully and truly, all material facts necessary for assessment. As we noted that the re-opening is beyond a period of four years and the original assessment was completed u/s 143(3) of the Act and in the light of the decision of Amiya Sales and Industries [2004 (9) TMI 32 - CALCUTTA HIGH COURT] the reopening of assessment is bad in law. We note that there is change in opinion as the assessee has disclosed all the material facts in its return of income, wherein, balance sheet along with annexures, bills vouchers, invoices were filed and the Assessing Officer had considered the same while completing the original assessment u/s 143(3) of the Act dated 28.12.2011. Merely having a reason to believe that income had escaped assessment, is not sufficient to reopen assessments beyond the four year period, as explained above. The escapement of income from assessment must also be occasioned by the failure on the part of the assessee to disclose material facts, fully and truly. - Decided in favour of assessee. Set off of derivative loss against the addition made on account of unexplained cash credit - HELD THAT:- The entire amount has been credited in the books of the assessee. Therefore, it can be implied that these receipts are in the nature of business receipts. This view is supported by the decision of Hon’ble Supreme Court in the case of Lakhmichand Baijnath vs. CIT [1958 (11) TMI 3 - SUPREME COURT]where sums found credited in the books of the assessee were treated as business profits. No infirmity in the order passed by the CIT(A).That being so, we decline to interfere with the order of Id. C.I T.(A) in directing the AO to allow set -off of derivative loss against the addition made u/s 68.The ld CIT(A)`s order on this issue is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
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