TMI Blog2011 (11) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon decision/judgments, which were not cited at the time of arguments. (2) The decision of the Division Bench of the Delhi High Court in Consolidated Photo and Finvest Limited versus Assistant Commissioner of Income Tax, (2006) 281 ITR 394 (Del) has been adversely commented upon, if not dissented in K.L.M. Royal Dutch Airlines versus A.D.I.T, (2007) 292 ITR 49 (Delhi), CIT versus Eicher Limited, (2007) 294 ITR 310 (Delhi) and CIT versus Goetze India Limited, (2010) 321 ITR 431 (Del) and the ratio of the said decision runs counter to the Full Bench decision of this Court in CIT versus Kelvinator India Limited, (2002) 256 ITR 1 (Del.), which has been approved by the Supreme Court in (2010) 320 ITR 561 (SC). (3) In the decision, the Court has relied upon the records produced by the Revenue but the said records were not made available to the petitioner. The petitioner was not aware of the audit objections. Audit objections cannot be a ground to reopen assessments as held in CIT versus Simbhaoli Sugar Mills Limited, (2011) 333 ITR 470 (Del). 2. The first and the third contention for the sake of convenience can be taken up together. The matter was heard on 13th Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h November, 2011, learned counsel for the petitioner-applicant was asked to examine paragraphs 13, 15 and 16 of the decision dated 26th September, 2011 wherein observations in Consolidated Photo and Finvest Limited (supra) have been quoted and state whether the ratio or quotations are contrary to the judgment of the Full Bench of this Court and the Supreme Court in Kelvinator India Limited (supra). 5. For the sake of convenience, the said paragraphs in the decision dated 26th September, 2011 are quoted below:- "13. Interpreting and highlighting the significance of the said explanation in Consolidated Photo and Finvest Ltd. vs. Assistant Commissioner of Income Tax, (2006) 281 ITR 394 (Del) it has been held:- "9. The above would show that cases falling in clause (c) of Explanation 2 in which income chargeable to tax has been underassessed or assessed at too low a rate or cases in which income has been made the subject of excessive relief under the Act or where excessive loss or depreciation allowance or any other allowance under the Act has been computed, would constitute cases of income escaping assessment. There is considerable authority for the proposition that the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a mere production of the books of account, it could not be inferred that there had been full disclosure of the material facts necessary for the purposes of assessment. The terms of the Explanation, declared the court, were too plain to permit an argument that the duty of the assessee to disclose fully and truly all material facts would stand discharged when he produces the books of account or evidence which has a material bearing on the assessment. The court observed (page 644): "It is the duty of the assessee to bring to the notice of the Incometax Officer particular items in the books of account or portions of documents which are relevant. Even if it be assumed that from the books produced, the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessment." 15. To the same effect is the decision of the Supreme Court in Malegaon Electricity Co. P. Ltd. v. CIT [1970] 78 ITR 466 where the court observed (page 471): "It is true that if the Income-tax Officer had made some investigation, particularly if he had looked into the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated Photo and Finvest Limited (supra) are at variance or do not lay down the law or ratio which is contrary to the decision in the case of Kelvinator India Limited (supra). Realizing this, Mr. Mehta, learned counsel for the petitioner-applicant did not press his submissions on these paragraphs. 7. Learned counsel for the petitioner-applicant made grievance with regard to paragraph 16 and submitted that the observations in Consolidated Photo and Finvest Limited (supra) are too broad and wide. Counsel for the Revenue has submitted that special leave was granted against the decision in Consolidated Photo and Finvest Limited (supra) but the civil appeal has been dismissed. We need not examine the said aspect because we are convinced that in the present case what has weighed with the Court is the factual findings recorded in the paragraphs 8 and 9, which read as under:- "8. We have examined the original records of the case which have been produced before us. Reassessment proceedings have been initiated after examining and considering the audit note. The note records that the auditor's scrutiny revealed that the Assessing Officer had asked the assessee to furnish complete detai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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