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2016 (2) TMI 427 - ITAT MUMBAI

2016 (2) TMI 427 - ITAT MUMBAI - TMI - Reopening of assessment - Held that:- There was linkage of the documents with the statement tendered by the assessee evidencing that income had escaped assessment. It is not the case in the present appeals that addition has been made merely on the basis of statement recorded by the Revenue, rather, there was enough material on record which could be unearthed on the basis of survey followed by the statement of the assessee to show that the assessee made purc .....

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mounts being 50% of the gross profit is concerned, find that ad-hoc addition has been made on the basis of trading account. There is no dispute to the fact that while tendering the statement, the assessee admitted to have carried out purchase and sale, which were not entered in regular books of accounts. The Assessing Officer has added 50% of the gross profit on ad-hoc basis. In the modern era of cut throat competition, 50% of the gross profit is not expected. Even, while coming to a particular .....

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f reassessment is not justified

So far as, the contention of the ld. counsel for the assessee, that net profit rate should be adopted and not the gross profit is concerned, not agreeing with this proposition, because, in the present set off cases, the assessee has not declared anything and the whole profit was earned as the purchase and sales were not even entered in the books of accounts by the assessee. Thus, this ground of the assessee is not having any merit, therefore, dismissed. .....

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grounds. 2. During hearing of this appeal, Shri Devendra Jain, Ld. counsel for the assessee, explained that identical grounds have been raised in all the appeals, therefore, these can be heard together. Broadly, two grounds have been raised, one is with respect to reopening of assessment u/s 147 of the Income Tax Act, 1961 (hereinafter the Act) and the second one with respect to adding ₹ 1,80,851/- (A.Y. 2005-06), ₹ 2,75,820 (A.Y. 2006-07), ₹ 5,35,800/- (A.Y. 2007-08), ₹ .....

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11 and 10/01/2011 which was retracted on 12/03/2013. It was asserted that reopening was made merely on the basis of statement of the assessee. The ld. counsel challenged the reopening u/s 147 r.w.s 148 of the Act, by contending that the reopening is bad in law for which reliance was placed upon the following decisions:- i. CIT vs Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) ii. Rallis India Ltd. vs ACIT (2010) 323 ITR 54 (Bom.) iii. Dr. J Mohan vs ACIT (2012)18 ITR (T) 363 (Chennai) and iv. .....

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herefore, it was rightly reopened u/s 147 of the Act. It was also explained that in his statement that the assessee admitted even for the earlier assessment years, identical unaccounted purchases/sales were made by the assessee. 2.3. I have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee an individual was carrying out in the business of trading in potato, onion and garlic under the name and style of M/s Fatandas Mandaldas. .....

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2011, the statement of the assessee was recorded, wherein, he confirmed the statement recorded on 07/01/2011. Impounding of document from the business premises of the assessee is not in dispute as is evident from reply to question no.4 of the statement. Even, in reply to question no.5 with respect to papers serially numbered 1 to 35 and in reply in question no. 16 of the statement recorded on 07/01/2011, it was categorically tendered by the assessee that he did not entered the transactions of pu .....

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ring the course of survey u/s 133A and admitted by you as well that you do not enter all the cash purchases and sales in your books of account. Please state whether during the presiding years also you have made unaccounted sales and purchases. If so, please give quantum of unrecorded sales and purchases during preceding years. Ans. I stated that during preceding years also I have made unrecorded purchases and sales during preceding years, however, the quantum of unrecorded purchases and sales us .....

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rgeable to tax has escaped assessment for any assessment year, he may, subject to the provisions 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 (hereafter in this section and in sections 148 to .....

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notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: Provided also that the Assessing Officer may assess or reassess such .....

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e 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 .....

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essive relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed; (d) where a person is found to have any asset (including financial interest in any entity) located outside India. Explanation 3.-For the purpose of assessment or reassessment under this section, the Assessing 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 co .....

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of Explanation -3 to section 147 of the Act by the Finance (No.2) Act of 2009 with effect from 01/04/1989 section 147 has an effect that Assessing officer has to assess or reassess income (such income) which has escaped assessment and which was basis of formation of belief and, if he does so, he can also assess or reassess any other income which has escaped assessment and which came to the notice during the course of proceedings. Identical ratio was laid down by Hon ble jurisdictional High Court .....

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d by the decision in Majinder Singh Kang vs CIT (2012) 25 taxman.com 124/344 ITR 358 (P & H) and Jay Bharat Maruti Ltd. Vs CIT (2010) Tax LR 476 (Del.) and V. Lakshmi Reddy vs ITO (2011) 196 taxman 78 (Mad.). The provision of the Act is very much clear as with effect from 01/04/1989, the Assessing Officer has wide powers to initiate proceedings of reopening. The Hon ble Kerala High Court in CIT vs Abdul Khadar Ahmad (2006) 156 taxman 206 (Kerala) even went to the extent so long as the AO has .....

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g Officer, that income has escaped assessment, because the powers with effect from 01/04/1989 are contextually different and the cumulative conditions spelt out in clauses (a) and (b) of section 147, prior to its amendment are not present in the amended provision. The only condition for action is that the Assessing Officer should have reason to believe that income has escaped assessment. Such belief can be reached in any manner and is not qualified by a pre-condition of faith and true disclosure .....

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hich are aimed at gathering the escaped income . At the same time, I am aware that powers u/s 147 and 148 of the Act are not unbridled one as it is hedged with several safeguards conceived in the interest of eliminating room for abuse of this power by the AO. However, the material available on record, clearly indicates that income chargeable to tax had escaped assessment and duly confirmed by the assessee, while recording his statement on 07/01/2011 and 10/01/2011, therefore, the ld. Assessing O .....

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reassessment has been widened. After such substitution, the only restriction, put in that section is that reason to believe . That reason has to be a reason of a prudent person which should be fair and not necessarily due to failure of the assessee to disclose fully and partially some material facts relevant for assessment (Dr. Amin s Pathology Laboratory vs JCIT (2001) 252 ITR 673, 682 (Bom.) Identical ratio was laid down by Hon ble Delhi High court in United Electrical Company Pvt. Ltd. vs CI .....

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nd not a conclusive finding of facts. Identical ratio was laid down in Brijmohan Agrawal vs ACIT (2004) 268 ITR 400, 405 (All.) and Ratnachudamani S. Utnal vs ITO (2004) 269 ITR 272, 277 (Karnataka) applying Sowdagar Ahmed Khan vs ITO (1968) 70 ITR 79(SC). 2.8. So far as, the meaning of expression, reason to believe is concerned, it refers to believe which prompts the Assessing Officer to apply section 147 to a particular case. It depend upon the facts of each case. The belief must be of an hone .....

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(Uttrakhand), v. CIT vs Abhyudaya Builders (P. ) Ltd. (2012) 340 ITR 310 (All.), vi. CIT vs Dr. Devendra Gupta (2011) 336 ITR 59 (Raj.), vii. Emirates Shipping Line FZE vs Asst. DIT (2012) 349 ITR 493 (Del.). viii. Reference may also made to following judicial decisions:- ix. Safetag international India P. Ltd. (2011) 332 ITR 622 (Del.), x. CIT vs Orient Craft Ltd. (2013) 354 ITR 536 (Del.) xi. Acorus Unitech Wirelss Pvt. Ltd. vs ACIT (2014) 362 ITR 417 (Del.). xii. Praful Chunilal Patel: Vasant .....

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The Hon ble jurisdictional High Court held as under:- Held, that there was material on record on the basis of survey and statement of person to show that the assessee had wrongfully claim deduction u/s 80IA. Therefore, the Assessing Officer had reason to believe that income had escaped assessment for assessment year 1994- 95. Identically in the case of Srichand Lalchand Talreja v. Asst. CIT, (1998) 98 Taxman 14, 19 (Bom), where the information regarding acquisition of the asset was not availabl .....

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n of mind to the relevant facts during the course of the assessment proceedings by the Assessing Officer, the reopening of the assessment was held to be valid. 2.11. The Hon ble jurisdictional High Court in Girilal & Co. v. S.L. Meena, ITO, (2008) 300 ITR 432 (Bom), held that in order to invoke the extraordinary jurisdiction of the court the petitioner must also make out a case that no part of the relevant material had been kept out from the Assessing Officer). The information was in the ann .....

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longterm capital gains in the original return of income and in the computation that was submitted in response to the query of the Assessing Officer there was a complete silence in regard to the dates on which the amounts were invested, as such there being a failure to disclose fully and truly material facts necessary for assessment. The reassessment proceedings were held to be valid. This view was also confirmed in following cases:- a. Dalmia P. Ltd. v. CIT, (2012) 348 ITR 469 (Del); b. CIT v. .....

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3 ITR 413,416-17 (P & H), where excise duty paid in advance was shown as an asset in the balance sheet and was allowed as a deduction, reassessment notice on the ground that excise duty was shown as an asset in the balance sheet and was not routed through the profit and loss account. The reopening at this stage was held to be valid. 2.15. In the case of Vipan Khanna v. CIT, (2002) 255 ITR 220, 230 (P & H), where from the facts it was clear that the assessee had claimed depreciation in th .....

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ee which had not been disclosed during the original assessment proceedings, such initiation has been upheld. 2.16. In the case of Pal Jain v. ITO, (2004) 267 ITR 540, 544-45, 548, 549 (P & H), applying Phool Chand Bajrang Lal v. ITO, (1993) 203 ITR 456 (SC), although the transaction of sale of shares was disclosed and accepted in the original assessment, but the subsequent discovery by the DDI (Investigation) revealed that the transaction was not genuine, a reassessment notice after four yea .....

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Asst. CIT, (2004) 267 ITR 779, 781-82 (P & H), where depreciation was allowed to the assessee, who was engaged in the business of financing of vehicles and consumer durables on 'hirepurchase basis' as well as on 'lease/rent basis', a reassessment notice issued after four years has been held not to suffer from any illegality as the same was based on the bona fide action of the competent authority to determine whether or not the vehicles in respect of which the petitioner had b .....

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ular assessment had been allowed deduction more than actually allowable under section 80HHC. Therefore, the action initiated by the AO for reassessment under section 147(b) could not be held to be invalid. 2.19. In the case of Markanda Vanaspati Mills Ltd. v. CIT, (2006) 280 ITR 503 (P & H), wherein, the information furnished by the assessee gave no clue to the payment of liability in regard of the sales tax collected in excess. The Assessing Officer was held to be validly initiated the reas .....

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isdiction to initiate the reassessment proceedings under section 147. 2.20. In the case of CIT v. Hukam Singh, (2005) 276 ITR 347 (P & H), held that the respondents did not have the locus standi to question the orders of reassessment on the ground of lack of notice. Non-issuance of notice to some of the legal heirs of the late P was merely an irregularity and the same did not affect the validity of the reassessment orders. Likewise, in Tilak Raj Bedi v. Joint CIT, (2009) 319 ITR 385 (P & .....

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pacity of the donor to make gifts and the occasion therefore. The assessee had failed to discharge the onus to prove the gifts. The reassessment proceedings were held to be valid. In the case of Usha Beltron Ltd. v. Joint CIT, (1999) 240 ITR 728, 736-37, 739 (Pat), where the investigation report indicated that the Officer had reason to believe that on account of failure on the part of the petitioner-assessee to disclose true and full facts, income had been grossly under assessed, reassessment pr .....

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difference in value of properties disclosed by the assessee and that of the report of the Valuation Officer and the reasons that led to the issue of the notice were duly recorded and the same were also adequate and based on relevant facts and material, initiation was upheld. In Triple A Trading & Investment Pvt. Ltd. v. Asst. CIT, (2001) 249 ITR 109, 110-11 (MP), where the notice was issued after recording reasons in that regard, initiation was upheld. 2.23. Likewise, Hon ble Gujarat High C .....

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e amalgamating company in accordance with section 49(2) read with section 47(vii), initiation of reassessment proceedings after four years has been sustained because there was failure on the part of the assessee to disclose material facts necessary for assessment. 2.24. Likewise, in Suman Steels v. Union of India, (2004) 269 ITR 412,418-19 (Raj), where the return of the assessee for assessment year 1995-96 was processed under section 143(1)(a) accepting the net profit rate declared by the assess .....

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sessment proceedings initiated for the reasons recorded in detail illegal. 2.25. In the case of Desh Raj Udyog : Chaman Udyog v. ITO, (2009) 318 ITR 6 (All), in the assessment years in question, the matter was still to be decided finally by the assessing authority whether the income should be treated under the head 'Business income' or 'property income'. The assessee would get opportunity to show sufficient cause to the assessing authority during the course of assessment. Thus, i .....

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ssment years 2005-06 and 2006-07 was legal and in accordance with law. 2.26. Likewise, in the case of Sunil Kumar lain: Suresh Chandra lain v. ITO, (2006) 284 ITR 626 (All), notwithstanding the fact that the amount had been assessed to tax in the hands of P, he had taken a stand that the amount did not belong to him and instead belonged to S. Thus, it was not clear as to in whose hands the amount in question had to be assessed. The ITO was justified in taking proceedings under section 147 for as .....

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and contrary to facts. The assessee had not maintained any books of account. Therefore, the reopening of assessments was held to be valid and within time. In the case of CIT v. Uttam Chand Nahar, (2007) 295 ITR 403 (Raj), the notice requiring the assessee to file the return within 30 days was in accordance with section 148 as it must be deemed to be in force with effect from 1-4-1989, and in force as on the date notice was issued. There was no violation of section 148 in respect of the specifie .....

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6) 282 ITR 536 (All), the account books or record and other material were all common which were being considered by the CIT(A) in the proceedings relating to three appeals. The petitioner had notice and opportunity of being heard. The reassessment proceedings were held to be validly initiated. 2.29. In the case of Inductotherm (India) P. Ltd. v. lames Kurian, Asst. CIT, (2007) 294 ITR 341 (Guj), the Assessing Officer had found that there were errors in the computation of allowances. The reassess .....

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he previous year relevant to the assessment year but in earlier years. This the assessee had not disclosed. The reassessment was held to be valid. Likewise, in Kusum Industries P. Ltd. v. CIT, (2008) 296 ITR 242 (All), as the award had become final it would be taken that the directors of the assessee had accepted the factum of earning of secret profit not reflected in the books of account, which was also binding on the company. The non-appearance of one of the arbitrators and one of the director .....

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ly reopened under Explanation 2(c) to section 147. Likewise, in CIT v. N. Jayaprakash, (2006) 285 ITR 369 (Ker), where, the assessee could not, after having persuaded the assessing authority to withdraw the notice dated 1-10- 1993, pointing out that it was not in conformity with law, be allowed to contend that the notice was valid due to the omission of the time-limit by the Finance (No.2) Act, 1996, with effect from 1-4-1989. In the absence of specific provision in the Finance (No. 2) Act, 1996 .....

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e the taxability of advances or loan raised by the assessee. There was failure to disclose material facts necessary for assessment. The reassessment proceedings were held to be valid. In another case, the Hon ble Allahabad High Court in Chandra Prakash Agrawal v. Asst. CIT, (2006) 287 ITR 172 (All), wherein, the Income-tax Department had sent a requisition on 27-3-2002, under section 132A requisitioning the books of account and other documents seized by the Central Excise Department. The record .....

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ate particulars as regards sale consideration. Thus, the Tribunal was justified in holding that the assessee had failed to disclose fully and truly all material facts necessary for the assessment of the relevant assessment year. The reassessment proceedings had been validly initiated. Likewise, in CIT v. Abdul Khader Ahamed, (2006) 285 ITR 57 (Ker), it was clear from the reasons recorded by the Deputy CIT that he prima facie had reason to believe that the assessee had omitted to disclose fully a .....

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assessment to tax and, the reassessment was held to be valid. In Sunder Carpet Industries v. ITO, (2010) 324 ITR 417 (All), held that the Departmental Valuer's Report constituted material for entertaining a belief of escaped income in the years under consideration. The reassessment proceeding was held to be valid. 2.35. In Aurobindo Sanitary Stores v. CIT, (2005) 276 ITR 549 (Ori), there being a substantial difference between the figures of liabilities towards sundry creditors in the party l .....

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& Saw Mills, (2011) 331 ITR 63 (Ker), the assessee challenged the validity of the reassessment on the ground that the AO had exceeded his jurisdiction under section 147 and both the first appellate authority as well as the Tribunal accepted the contention of the assessee holding that so far as the reassessments related to assessment of unexplained trade credits, they were invalid. On appeal, it has been held that the reassessments were to be valid. In Honda Siel Power Products Ltd. v. Deput .....

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rnal source and, as such, the reassessment proceedings for the assessment year 2000-01 were held to be valid. Likewise, in the case of CIT v. Smt. R. Sunanda Bai, (2012) 344 ITR 271 (Ker), the reassessment in question were held to be valid on the fact that the assessee claimed and was given relief under section 80HHA for the three preceding year which disentitled her for deduction under section 80HH for the assessment years 1992-93 and 1993-94. 2.38. In the case of Aquagel Chemicals P. Ltd. v. A .....

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1)(i) held attracted, said reason by itself constituted a relevant ground to reopen the assessment of the assessee. Reference may also be made to i. Ajai Verma v. CIT [(2008) 304 ITR 30 (All)]; ii. Ashok Arora v. CIT [(2010) 321 ITR 171 (Del)]; iii. CIT v. Chandrasekhar BaLagopaL [(2010) 328 ITR 619 (Ker)]; iv. Jayaram Paper Mills Ltd. v. CIT [(2010) 321 ITR 56 (Mad)]; v. Kerala Financial Corporation v. Joint CIT [(2009) 308 ITR 434 (Ker)]; vi. Mavis Satcom Ltd. v. Deputy CIT [(2010) 325 ITR 428 .....

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2013) 353 ITR 73 (Del)]; xiv. A G Group Corporation v. Harsh Prakash [(2013) 353 ITR 158 (Guj)]; xv. Inductotherm (India) P. Ltd. v. M. GopaLan, Deputy CIT [(2013) 356 ITR 481 (Guj)]; CIT v. Dhanalekshmi Bank Ltd. [(2013) 357 ITR 448 (Ker)]; xvi. Sitara Diamond Pvt. Ltd. v. ITO [(2013) 358 ITR 424 (Bom)]; xvii. Rayala Corporation P. Ltd. v. Asst. CIT [(2014) 363 ITR 630 (Mad)]. 3. So far as, the decision in the case of CIT vs Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) is concerned, the Hon .....

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was merely as afterthought. There is a possibility that the statement, if, recorded under duress and threat (which is not the case in the present appeals) in that situation, there is a less possibility of retraction during that period, however, if the retraction is made within short span of time then retraction carries more weight. The assessee never alleged that the statement was recorded under duress and threat. Likewise, in the case of CIT vs S. Khader Khan Son (2012) 254 CTR 228 (SC), affirm .....

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of nonrecording of purchase and sale in the regular books of accounts. 4. If the material available on record and the judicial pronouncements discussed hereinabove, I find that there was linkage of the documents with the statement tendered by the assessee evidencing that income had escaped assessment. It is not the case in the present appeals that addition has been made merely on the basis of statement recorded by the Revenue, rather, there was enough material on record which could be unearthed .....

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ate Authority. 5. So far as, the next ground with respect to adding the respective amounts being 50% of the gross profit is concerned, I find that ad-hoc addition has been made on the basis of trading account. There is no dispute to the fact that while tendering the statement, the assessee admitted to have carried out purchase and sale, which were not entered in regular books of accounts. The Assessing Officer has added 50% of the gross profit on ad-hoc basis. In the modern era of cut throat com .....

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