TMI Blog2012 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... SWAR, JJ. For Appellant: Mr. Kaanan Kapur, Adv. For Respondent: Mr. Sanjeev Rajpal, Adv. R.V. EASWAR, J.: M/s. Rajat Export Import India Pvt. Ltd. has filed the present writ petition under Article 226 of the Constitution of India praying for issue of writ of certiorari to quash the notice issued by the Income Tax Officer, Ward 15(2), New Delhi, the respondent herein, under Section 148 of the Income Tax Act on 28.3.2011 as well as all subsequent proceedings emanating therefrom. It has also been prayed that the order passed by the respondent on 11.11.2011 disposing of the objections filed by the petitioner to the issue of notice under Section 148, may be quashed. A general prayer for issue of any other order as may be appropriate in the facts and circumstances of the case has also been made. 2. The petitioner is a private limited company. In respect of the assessment year 2004-05 it filed a return of income on 27.10.2004 and the same was processed under Section 143(1) of the Act on 31.12.2004. Thereafter, on 28.3.2011 the respondent issued notice under Section 148 of the Act calling upon the petitioner to file a return of income on the ground that income charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has examined meticulously the various bank accounts of the assessee and other parties besides other substantive material like recorded statements of proven entry operators. It was, therefore, stated that the belief of the Assessing Officer is well founded and was not based on vague grounds. A couple of judgments of this Court were also relied upon by the respondent. Accordingly, the respondent rejected the objections of the petitioner. 4. The present writ petition has been filed by the petitioner-assessee against the aforesaid order passed by the Assessing Officer rejecting the objections to the reopening of the assessment. After hearing the learned counsel for the petitioner for some time on 28.11.2011, the learned standing counsel for the revenue was directed to produce the original records and the matter was relisted on 2.12.2011. On that date the file was produced but it did not contain the relevant papers on the basis of which the reasons were recorded under Section 148. Therefore, the matter was directed to be relisted on 16.12.2011 with a direction that the Assessing Officer shall be present along with the relevant papers before the Court on that date. It was also direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee also filed a compilation of authorities relied upon by him and on the basis of these authorities he contended that what was being relied upon by the Assessing Officer now has not been mentioned or stated in the reasons recorded on 17.2.2011 on the basis of which notice under Section 148 was issued on 28.3.2011. He submitted that the respondent should not be permitted to improve or add to the reasons recorded at the time of the issue of notice under Section 148. According to him, the statement of Vishal Aggarwal has been used by the respondent to supplement the reasons recorded by the Assessing Officer on 17.2.2011 which is not permissible in law and even otherwise, and without prejudice to the said contention that the statement should not be looked into, it cannot be relied upon since it does not specifically name the assessee. The statement recorded was non-specific, vague and ambiguous. 7. Despite the valiant attempt made by Mr. Kaanan Kapur, the learned counsel for the assessee, to discredit the reasons recorded for reopening the assessment, we are afraid we cannot agree with his submissions. On 17.2.2011 the Assessing Officer recorded the following reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice u/s 148 may be issued, if approved. The aforesaid reasons were enclosed to the notice dated 28.3.2011 issued under Section 148. It will be noticed that in the reasons recorded the Assessing Officer has referred to the investigation made by the DIT (Inv.) in the case of Mukesh Gupta Group along with its close confidants Rajan Jassal and Surinder Pal Singh. The group was found to have operated multiple accounts in various branches of banks to introduce unaccounted money in the guise of gifts, loans, share application money etc. It was further found by the investigation wing that those who wanted to introduce their own unaccounted money into their books approach persons belonging to the group, pay them cash plus commission and take cheques or demand drafts or pay orders for an equivalent amount. The cash is deposited in banks by the persons belonging to the group, who are known as entry operators or entry providers, and cheques are issued to assessees who want to get their own unaccounted money introduced into their business. After referring to the broad and general modus operandi adopted by the entry providers, the Assessing Officer specifically noticed from the list of entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer Ward 8(4) Anr., decided on 21st July, 2011, as one of us (Sanjiv Khanna, J.) was the author of the said judgment. In the said case, it was noticed that the reasons recorded by the Assessing Officer and enclosed with the counter affidavit were different from the reasons recorded by the Assessing Officer for approval under Section 151. Secondly, on examination of the reasons mentioned by the Assessing Officer for approval it was found that they were sketchy, scanty and vague. Reference was made to the Annexure mentioned in the reasons and it was held that the Annexure cannot be regarded as a material or evidence that prima facie shows or establishes nexus or link which discloses escapement of income. It was further observed that the Assessing Officer while recording reasons did not apply his own mind to the information and examine the basis and material. The Commissioner acted on the same basis by mechanically giving his approval. In paragraph 15 of the judgment, it was recorded as under:- 15. The aforesaid reasons do not satisfy the requirements of Section 147 of the Act. The reasons and the information referred to is extremely scanty and vague. There is no reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the compilation of the material contained in the CD filed before us by the learned standing counsel for the revenue, we find two more entries showing receipt by the petitioner herein of Rs.4 lakhs each from a company called Hopewin Admark Consultants P. Ltd., described as entry provider. This information also is in the form of a table and contains the same details which the table set out by the Assessing Officer in the present case in the reasons recorded by him on 17.2.2011. It is not necessary for the purpose of testing the validity of the notice issued under Section 148 in the present case to refer to these additional entries made in the name of Hopewin Admark Consultants P. Ltd. As the learned counsel for the assessee was not in a position to deny that the material relied upon by the Assessing Officer at the time of recording reasons for reopening the assessment did contain an entry linking M/s. Shivam Softech Ltd. with the petitioner herein, the issue of notice under Section 148 on the prima facie belief that income chargeable to tax had escaped assessment must be upheld as valid. 10. The reasons to believe recorded in writing by the Assessing Officer in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
