TMI Blog2013 (7) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... tax had escaped assessment - Court relied upon the decision of Assistant Commissioner of IncomeTax vs. Rajesh Jhaveri Stock Brokers P.Ltd. (2007 (5) TMI 197 - SUPREME Court) - in an assessment which was previously not taken in scrutiny, the AO found that there were no cash sales in the financial year 2004-05 and that therefore total sales was unexplained - AO also pointed out that the total sum through different entries was deposited in cash in the bank account of the assesse during the said period which is also unexplained - notices for reassessment have been issued in case of a non-scrutiny assessment - appeal decided against assesse - Special Civil Application No. 3569 of 2013 - - - Dated:- 26-3-2013 - AKIL KURESHI AND MS. SONIA GOK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.23,83,738/which includes Rs.2,95,000/in the form of cheques return i.e. the cheque which was not honoured and other charges of Rs.528/. Hence, total expenses made through Bank of Baroda is Rs.20,88,210/(Rs.23,83,738-Rs. 2,95,000-Rs.528). Further, during the F.Y.2004-05,the assesse company had only one bank account i.e. with Bank of Baroda A/c. No.02810200000213. The total expenses made by the company as per audit report including liability is Rs.33,35,778/against total expenses of Rs.20,88,210/as per bank statement. Sundry creditors as per balance sheet are Rs.3,50,833/for which no details have been provided. Hence, there is a difference of Rs.12,47,568/(Rs.33,35,778-Rs.20,88,210/)in expenditure which appears to be unexplained e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity and that therefore no reopening can be based on such reasons even in case of nonscrutiny assessment. He further submitted that the Assessing Officer cannot be stated to have reason to believe that income chargeable to tax has escaped assessment. He submitted that the Assessing Officer has, without proper verification of the balancesheet of the assessee, come to certain conclusions which are totally erroneous. 6. We may once again remind ourselves that notices for reassessment have been issued in case of a nonscrutiny assessment. In this context, we may refer to the decision of the Apex Court in the case of Assistant Commissioner of IncomeTax vs. Rajesh Jhaveri Stock Brokers P.Ltd. reported in [2007] 291 ITR 500(SC) in which it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic no . The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise. xxx xxx xxx xxx xxx xxx 16. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word reason in the phrase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (236) ITR 34 (SC)]. 17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/through different entries was deposited in cash in the bank account of the assesse during the said period which is also unexplained. We do not find that such reasons can be stated to be lacking validity permitting the Assessing Officer to assess the income. 8. Under the circumstances, we are not inclined to interfere. It is, however, clarified that nothing stated in this order should be seen as our opinion on the taxability of the amount in question. In other words, we only find that there was sufficient material with the Assessing Officer to form a belief that income chargeable to tax had escaped assessment. Whether, in fact, such additions can be made or not, must be judged on the basis of material, which may come on record during s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
