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TMI Blog2013 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... d and registered under the provisions of the Companies Act, 1956, and the income-tax return for the assessment year 2006-07 was submitted on November 13, 2006, declaring a total loss of Rs. 1,56,51,326. It has been further stated that the petitioner-company's case was selected for scrutiny by the then Assessing Officer and a notice was issued under section 143(2) of the Income-tax Act on November 13, 2007. The petitioner further stated that the Assessing Officer raised various queries for making inquiries on various issues and a specific query was made, i.e., query No. 12 by the Assessing Officer requiring the petitioner to supply information regarding names and addresses of the parties to whom sales exceeding Rs. 5 lakhs were made during the financial year 2005-06. The petitioner further stated that it has furnished the details of the parties to whom the sales exceeding Rs. 5 lakhs were made, which included M/s. Pravin Trading Co., M/s. Mohan Traders and M/s. Maa Bhagvati Traders. The petitioner further stated that in respect of the assessment for the assessment year 2006-07, proceedings were completed, vide order dated December 22, 1998, by passing a reasoned order. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned counsel for the petitioner. 7. In the present case, it is an admitted fact that the assessment order was passed in respect of the assessment year 2006-07 on December 22, 2008. It is also an admitted fact that in respect of the subsequent assessment year 2008-09, an assessment order has been passed under section 143(3) of the Income-tax Act on December 31, 2012. 8. A show-cause notice was issued by the Department on January 4, 2011, under section 148 of the Income-tax Act, 1961. Sections 147 and 148 of the Income-tax Act read as under : Sections 147 and 148 "147. Income escaping assessment.-If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provision of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereinafter in this section and in sections 148 to 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included, in the reasons recorded under sub-section (2) of section 148. 148. Issue of notice where income has escaped assessment.-(1)Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed ; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 : Provided that in a case- (a) where a return has been furnished during the period commencing on the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Finance Ltd. [1994] 205 ITR 98 (Delhi) [FB]. Although in the case before the Delhi High Court the issue involved was regarding share application money but the hon'ble Full Bench of the Delhi High Court has while passing the verdict mentioned that it is immaterial as to whether the amount credit is given the colour of a loan or a sum representing sale proceeds or even receipt of share application money. The use of the words 'any sum found credited in the books' in section 68 indicates that the section is very widely worded and the Assessing Officer is not precluded from making an enquiry as to the true nature and source of a sum credited in the account books. The hon'ble Supreme Court has held in the case of A. Govindara-julu Mudaliar v. CIT [1958] 34 ITR 807 (SC) that it is well established that the onus of proving the source of sum of money found to have been received by the assessee is on him. If he disputes liability of tax, it is for him to show either that the receipt was not income or that if it was, it was exempt from taxation under the provisions of the Income- tax Act. In the absence of such proof, the Income-tax Officer is entitled to treat it as taxable income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer will not necessarily amount to disclosure within the meaning of the foregoing proviso. In the present case, although the original assessment has been framed under section 143(3) but notice under section 148 has been issued before the expiry of four years from the end of the assessment year. Therefore, the proviso to section 147 does not come to rescue of the assessee. Explanation 2 to section 147 states that where an assessment has been made but income chargeable to tax has been underassessed shall also be deemed to be a case where income chargeable to tax has escaped assessment. 4. The assessee has further contended that credits which are sought to have been treated as unexplained cash credits are in the nature of payments received in cash against sales effected which have already been included in the trading and profit and loss account, on the basis of which income has been derived and that since the income in respect of the said credits has been already offered for taxation, therefore, no further income is left to be taxed. Comments : The assessee has on the basis of the mercantile system of accounting adopted by him offered the sales in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the income chargeable to tax has escaped assessment in the peculiar facts and circumstances of the case. 12. This court has also carefully gone through the judgment delivered by the Division Bench in the case of CIT v. Kelvinator of India Ltd. reported in [2010] 320 ITR 561 (SC) and the judgment delivered by the Full Bench of the Delhi High Court in the same case reported in [2002] 256 ITR 1, wherein it has been held that reassessment proceeding cannot be initiated only upon the mere change of opinion. The aforesaid judgment delivered by the Delhi High Court has been affirmed by the hon'ble apex court. However, the fact remains that in the present case reassessment has not been done only upon the mere change of opinion and, therefore, the judgments relied upon the learned counsel are of no help to the petitioner. Not only this, the petitioner-company is having an alternate remedy in the matter as per the provisions of the Income-tax Act, 1961, and, therefore, this court does not find any reason to interfere with the order passed by the Assessing Officer. 13. Resultantly, no case for interference i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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