TMI Blog2017 (1) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to disclose fully and truly all facts necessary for assessment. Nor does it state that there has been any misrepresentation on the part of the petitioner. It is on reexamination of the seized diaries(A1 to A6) alone, without any fresh material which points to the falsity of the diaries(A1 to A6). Therefore when we examine the reasons recorded, without the aid of the affidavit in reply dated 12 March 1988 of the Commissioner of Income Tax, it clearly indicates a change of opinion on the same set of facts. Thus it is a clear case of the Assessing officer seeking to review his decision taken during the earlier assessment/ reopening assessment and not a case of reassessment. In the present facts, it is not the case of the Revenue that any material evidence which was a part of the seized six diaries (A1 to A6),was not brought to the notice of the Assessing Officer, and it does not mention which material relied upon by the Petitioner during the assessment proceedings, had led the Assessing Officer to conclude that the Petitioner is only a finance broker and not a financier. In fact the reasons recorded in this case does not even remotely indicate that any part of the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 148 read with Section 143(3) of the Act, determined the Petitioner's income at ₹ 4.65lakhs for the Assessment Years 1989-90 and ₹ 11.89 lakhs for the Assessment Year 1990-91. This was by relying upon entries in six diaries (A1 to A6) which were seized by the department during the course of the search. So far as the Assessment Year 1991-92 is concerned, the Assessing Officer completed the Assessment on 31st March, 1994 by an order passed under Section 143(3) of the Act again amongst other things by placing reliance upon the six diaries (A1 to A6) seized during the search proceedings in the year 1990-91. 6. Thereafter, the Assessing Officer issued the impugned notices on 23rd September, 1997 to the Petitioner, seeking to re-open the assessment for the Assessment Years 1989-90, 1990-91 and 1991-92. The reasons recorded in support of the impugned notices by the Assessing Officer for all the three years are, identical, according to counsel for both sides. Therefore, for the sake of convenience, the reasons recorded for the Assessment Year 1991-92 are reproduced as under:- SHRI AMAR NAGPAL A.Y. 1991-92 REASON FOR REOPENING UNDER SECTION 147 The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re also noted in reasons recorded for A.Y. 1989-90. During the year the receipts from property dealings noted in A/6 diaries are: Date Amount Rs. Description 3.4.90 21,000 Mahink Asha Nagar Deposit flat a/c 4.4.90 25,000 - do - 12.4.90 2,93,000 - do - 16.4.90 1,58,000 Murari shop account Khar 16.4.90 1,55,000 Divya Shah flat (also noted in A/1 on 18.4.90) 24.4.90 1,72,500 Mahink Asha Nagar Flat 401 (Also entry in A/1 24.4.90) 25.4.90 70,615 All account Murd ,, 1,00,000 Manghira Bhayandar ,, 1,30,000 Mahink Flat payment (Also A/1 diary) 2.5.90 35,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Crystal Kandvli) 5.7.90 2,00,000 Received Divya Shah flat a/c Dep a/c (A-1 on 6.7.90) 7.7.90 2,00,000 Received C/o. P. Tulsa flat a/c 1031/5 (A-1 diary also) 9.7.90 10,000 Received Khysh Asha Nagar Dep(A1) 16.7.90 1,74,000 Received Mahink Asha Nagar flat payment (A-1 flat 501) - Do- 27,250 Received Sarju Thane a/c B/2 - 102 (A-1) 17.7.90 1,50,000 Received Mahin Divya a/c Deep 17.7.90 50,000 Received Chandubai flat crystal(A-1) 17.7.90 75,000 Received Navani L.C. flat Kandivli payment (A-1 18.7.1990) 17.7.90 1,50,000 Received Divya flat a/c 19.7.90 25,000 Atlanta a/c 27.7.90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. 3.4.90 1,35,000 Sri Project shop Manish Park Andheri 4.4.90 1,51,000 Shri Project Investment Andheri Manish Park 5.4.90 10,000 Mahink Asha Nagar 6.4.90 75,000 Khys Pratap Bhayandar flat a/c 7.4.90 25,000 Mahink Asha Nagar No.304 13.4.90 20,000 Chandubhai Crystal Deposit 14.4.90 2,93,000 Mahink Asha Nagar flat no.302 Area 550 401 575 18.4.90 1,58,000 Murari Shop Khar Total 451 230 = 221 profit 23.4.90 5,00,000 Tik Kukja Sonda Atlanta ,, 10.00,000 -do - LFC 26.4.90 50,000 Murari Divya a/c 26.4.90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 2,00,000 Kishor Jaising Flat A/c 11.6.90 1,50,000 Kishore Jaising Flat Divya A/c 30.6.90 60,00,000 Sri Project Nalasopara 34000 x 175 agreement 90 6.7.90 2,00,000 Deepak Divya Flat a/c 19.7.90 75,000 Navani Flat A/c 1.8.90 4,80,000 Sri Project Shop No.5, 350 x feet x 1500 ft. 2.8.90 9,68,000 Sri Project Worli Shop 4.8.90 2,20,500 Sri Project 490 feet x 2 x 375 rate x 60 % 7.8.90 50,000 Kum Jaisingh Mud A/c (Also A/6 diary p. 79) 7.8.90 1,00,000 Dilip Divya Flat a/c 10.8.90 1,60,000 K.K. Murari Karjat Sirse A/c ,, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of club for four persons. The source is not explained Similarly he paid ₹ 5,000/- to Shri Ranan as deposit for Toyota Car on 13.6.90. The source is not explained and also paid ₹ 4,35,000/- to purchase 29 bearer bonds @ 15000 per bond on 9.4.90 to Sri Projects. The source of ₹ 4,35,000/- is not explained. Thus the amount of Rs. (60,000 + 5000 + 4,35,000) ₹ 5,00,000/- is the income of the assessee u/s. 69/69A/69B which has escaped assessment. F. The assessee vide letter dt . 5.2.94 has admitted that cash amount of ₹ 31 lacs deposited in the bank are unaccounted and covered by declaration u/s.132(4). This amount has escaped assessment. Thus consideration A,B,C,D,E F above, the following income has escaped assessment within sub-clause (i) of clause (c) of explanation 2 of Sec. 147. Para A for estate brokerage received ₹ 11,60,500 Para B for profit in property dealings ₹ 17,51,777 Para C for unexplained investment in Properties Rs.1,40,98,985 Para D for unexplained finances ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-Revenue places reliance upon the Affidavit dated dated 12th March, 1988 of one Mr. K. K. Deb Burman, the Commissioner of Income Tax, Central-I, to contend that the Petitioner had misled the Assessing officer in respect of the entries found in the six seized diaries(A- 1 to A-6) to conclude that he is not a financer. Besides, as stated in the affidavit the Petitioner's decoding of the seized diaries(A-1 to A-6) was incorrect. The learned Counsel further states that merely because the necessary evidence in the form of seized dairies were before the Assessing officer during the earlier Assessment proceedings, it would not follow that that there has been a full and true disclosure of all material facts necessary for assessments. It is submitted that it was the obligation of the petitioner to invite the attention of the Assessing Officer to specific material evidence in the seized dairies. In support attention is invited to Explanation II to Section 147 of the Act and the decision of this Court in Zohar Siraj Lokhandwala v/s. M. G. Kamat Others 210 ITR 956. Further, reliance is placed upon the decision of the Calcutta High Court in CIT v/s. M/s. Eureka Stock Share Broking Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax Mr. K.K. Deb Burman dated 12 May 1988 has to be ignored. The reasons as recorded can alone be subjected to examination, to determine whether it supports the belief that income chargeable to tax has escaped assessment. On minute examination of the reasons recorded, we find that even when reasons recorded are read as a whole, it does not indicate that there has been a failure on the part of the petitioner to disclose fully and truly all facts necessary for assessment. Nor does it state that there has been any misrepresentation on the part of the petitioner. It is on re-examination of the seized diaries(A-1 to A-6) alone, without any fresh material which points to the falsity of the diaries(A-1 to A-6). Therefore when we examine the reasons recorded, without the aid of the affidavit in reply dated 12 March 1988 of the Commissioner of Income Tax, it clearly indicates a change of opinion on the same set of facts. Thus it is a clear case of the Assessing officer seeking to review his decision taken during the earlier assessment/ re-opening assessment and not a case of reassessment. 13. The reliance placed by Mr. Mohanty upon the decision of this Court in Zohar Siraj Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld also have no application to the present facts for the two reasons. Firstly, in the above case, the assessee had by a letter addressed to the Assessing Officer during the course of assessment proceedings, misrepresented facts which led the Assessing Officer to pass an assessment order, to the prejudice of the Revenue. Admittedly, there is nothing in the reasons recorded in this case, to even remotely suggest that there was any misrepresentation of facts by the Petitioner during the assessment proceedings under Section 143(3) read with Section 148 of the Act for the Assessment Years 1989-90 and 1990-91 or even during the regular assessment proceedings for the Assessment Year 1991-92 completed under Section 143(3) of the Act. Secondly, the above decision of Calcutta High Court does not deal with the issue dealt with by this Court in Hindustan Lever Ltd., (supra) that an reopening notice must stand or fall only on the basis of the reasons recorded. In this case the reasons as recorded do not even suggest that there has been any misrepresentation. Thus, Eureka Stock Share Broking Services Ltd.,(supra) has no application to the present facts. 15. In the above view, all the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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