TMI Blog2013 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year 2008-09 and, therefore, there was a reason to believe in the matter that the income chargeable to tax has escaped assessment in the peculiar facts and circumstances of the case. In the case of CIT v. Kelvinator of India Ltd. reported in [2010 (1) TMI 11 - SUPREME COURT OF INDIA ] it has been held that reassessment proceeding cannot be initiated only upon the mere change of opinion - However, in the present case reassessment has not been done only upon the mere change of opinion - petitioner-company is having an alternate remedy in the matter as per the provisions of the Income-tax Act, 1961, - Decided against assessee - WP NO 5900/11, WP NO 5901/11 - - - Dated:- 5-8-2011 - SHANTANU KEMKAR and SATISH CHANDRA SHARMA JJ. Judgment: Satish Chandra Sharma J.- Regard being had to the similar controversy involved in these two cases, they were heard analogously together with the consent of the learned counsel for the petitioner, a common order is being passed in the matter. The facts of Writ Petition No. 5900 of 2011 are narrated as under : 2. The present writ petition has been filed challenging the legality and validity of the notice dated January 4, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that first appeal has been preferred against the order of assessment of the assessment year 2008-09 and the same is pending. The petitioner's grievance is that after completion of the assessment under section 143(3) for the assessment year 2008-09, vide order dated December 31, 2010, the respondent-assessing authority has issued a notice under section 148 of the Income-tax Act, 1961, on January 4, 2011, on the ground that he has reason to believe the petitioner's income chargeable to tax has escaped assessment within the meaning of section 147 of the Income-tax Act. The petitioner further stated that a reply was filed to the aforesaid show-cause notice and the Assistant Commissioner of Income-tax has turned down his objection, vide order dated May 9, 2011. The petitioner has raised various grounds before this court and his contention is that the assessing authority must have reason to believe that any income chargeable to tax has escaped assessment and a mere difference of opinion will not result into reason to believe and the assessment cannot be reopened provided there is a tangible material to come to the conclusion that there was escapement of income from assessment. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, other than the income involving matters which are the subject-matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.-Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2.-For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :- (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax ; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return ; (c) where an assessment has been made, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation.-For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005, in response to a notice served under this section. (2) The Assessing Officer shall, before issuing any notice under this section record his reasons for doing so." 9. The petitioner-company did submit a detailed and exhaustive reply to the show-cause notice and the objections raised by the petitioner-company, have been turned down. 10. The Additional Commissioner of Income-tax, Ujjain, has passed a detailed and exhaustive order, which reads as under : "The ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Comments : As narrated in the foregoing income has escaped assessment and reasons of escapement have been mentioned in the aforesaid. It is quite clear that the belief has been formed on the basis of relevant material and is not irrational as sought to be contended by the assessee. 3. The assessee has contended that a change of opinion on the basis of material which was already available at the time of assessment, cannot constitute a reason for formation of belief and proceedings initiated on the basis of mere change of opinion on the basis of material which was already available at the time of original assessment or without jurisdiction. 3.1 The assessee has stated that proceedings have been initiated on the basis of mere change of opinion on the basis of reappraisal of material which was already before the Assessing Officer at the time of original assessment. Comments : The proviso to section 147 stated that if an assessment has been framed under section 143(3), then no action shall be taken under section 148 after expiry of four years from the end of the assessment year unless income chargeable to tax has escaped assessment due to failure on the part of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of share application money'. This judgment has been delivered by a Full Bench of the Delhi High Court. Section 68 is a specialized provision and a deeming fiction enacted by the Legislature. The assessee has not been able to prove or establish the identity of the said parties though it was given sufficient opportunity to do so, vide various show-cause notices which were issued during the course of the assessment proceeding for the assessment year 2008-09. The assessee could not establish the nature and source of the credits appearing in account of the said parties. Therefore, they are required to be taxed as unexplained cash credits under section 68 even if debits appearing in these accounts have been offered as sales by the assessee. The objection filed by the assessee are accordingly disposed of vide this order." 11.The aforesaid order clearly reveals that the petitioner-company has furnished information in respect of the three parties from whom the assessee has received cash and the identity of the three parties from whom cash has been received is doubtful as they do not exist at the addresses given by the assessee and the TIN numbers mentioned in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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