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2021 (2) TMI 585 - HC - Income TaxValidity of Reopening of assessment u/s 147 - unaccounted cash transactions - Whether non-application of mind on the part of the Assessing Officer? - Whether in a case where the return filed by the assessee is accepted under Section 143 [1] of the Act without scrutiny, since the Assessing Officer had not formed any opinion, the principle of change of opinion would not apply? - HELD THAT:- It cannot be said that there is total non-application of mind on the part of the Assessing Officer while recording the reasons for reopening of the assessment. It also cannot be said that his conclusion was merely based on some documents seized in the course of search undertaken at the premises of the Venus Group under Section 132 - AO cannot be said to have merely concluded without verifying the fact that it is a case of reopening of the assessment. It is not in dispute, as evident from the reply filed by the department that the search and survey proceedings were carried out under Section 132 and documents were seized under Section 133A of the Act from the various premises of the Venus Group During the course of the search, various documents related to the unaccounted cash transactions of the Venus Group were seized. Upon due verification of all such seized documents, it was found that the unaccounted cash transactions were first recorded on the vouchers and thereafter in the day cash book. The seized documents reflected the unaccounted cash transactions for the period between January, 2007 to March, 2015. The cash book was written in the coded form. Further details and documents were obtained from the office of the Sub-Registrar for the purpose of identifying the beneficiaries in the transactions with the Venus Group. It can thus be seen that the Assessing Officer had analyzed the voluminous material collected by the Revenue during the search operations in connection with the Venus Group. This material, prima facie suggested huge cash transactions in connection with sale of lands against the total declared sale consideration of ₹ 5.38 Crore [rounded off]. The material prima facie suggests that the total cash transactions of ₹ 9,07,26,000/- had taken place. When we are concerned with the re-opening of the assessment, that too, in the case of Heval Navinbhai Patel, where the return was not filed for the assessment year and in the case of Navinbhai Patel, where the return filed by him was accepted without scrutiny, the material at the command of the Assessing Officer is sufficient to permit the process of reopening - As held in the case of ACIT v. Rajesh Jhaveri Stock Brokers Private Limited [2007 (5) TMI 197 - SUPREME COURT] and Raymond Woolen Mills Limited[1997 (12) TMI 12 - SUPREME COURT], the reason to believe cannot be equated with finally established fact that the income chargeable to tax having escaped assessment additions will invariably be made and further, the sufficiency of reasons enabling the Assessing Officer to form such a belief would not be gone into. Whether proceedings under Section 148 of the Act are not tenable in law, as the case falls within the ambit of Section 153(C)? - Indisputably in the case on hand, the search was undertaken prior to 01.06.2015. If that be so then, it is clear that before issuing the notice under Section 153(C) of the Act, the primary condition has to be fulfilled and which is that the money, bullion, documents etc., seized should belong to such other person. If this condition is not satisfied, no proceedings could be taken u/s. 153C of the Act. The seized documents do not belong to the two writ applicants herein but were seized from the premises of the Venus Group. It is not the case of the revenue that the seized documents are in handwriting of the two writ applicants. In such circumstances, the Assessing Officer could not have initiated proceedings under Section 153(C) of the Act but based on the information, could be said to be justified in reopening the assessment for the reasons assigned and referred to above. We are not impressed with the submissions canveassed by Mr. Shah that the proceedings under Section 147 are not tenable in law, as the case is covered by Section 153(C) of the Act.
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