9911796707
TMI Blog2005 (8) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1995-96, the petitioner filed its return regarding the construction of the building showing loss of Rs. 2,77,400. The assessment was completed under section 143(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). The respondent issued a notice under section 148 of the Act on December 24, 1998, to reopen the case for the assessment year 1995-96. On the request of the petitioner, on July 26,1999, the reasons for issue of the notice and reopening of the case have been supplied which is annexure 9 to the writ petition, read as follows: "During the course of assessment proceedings for the assessment year 1996-97 the books of account of the assessee were rejected under section 145(2) for the detailed reasons given in the order passed under section 143(3) dated December 18, 1998, it was found that: 1. That the assessee is not maintaining the stock register even for the major items such as steel, cement, bricks, etc. 2. Work-in-progress register has also not been maintained from which expenditure incurred on the project can be verified. 3. No details of day-to-day consumption of material is maintained. And the net income was estimated at 10 per cent, of the gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the reasons recorded is sufficient to reopen the case and this court in writ jurisdiction cannot examine the sufficiency of the material. In support of his contention, he relied upon the decisions in the cases of Raymond Woollen Mills Ltd. v. ITO reported in [1999] 236 ITR 34 (SC); Kundan Lal Ratan Lal Jain v. Assessing Officer reported in [2000] 245 ITR 434 (All) and Ess Ess Kay Engineering Co. P. Ltd. v. CIT reported in [2001] 247 ITR 818 (SC). We have given our anxious consideration to the submissions of learned counsel for the parties and perused the reasons recorded for reopening of the case under section 147 of the Act, which have been referred to hereinabove. It is a settled principle of law that in writ jurisdiction the court cannot examine the sufficiency of the material on the basis of which notice under section 148 of the Act is issued but it is open to this court in writ jurisdiction to examine, whether there was any material or the material mentioned in the reasons recorded is relevant material to form a belief of escaped income. Section 147 of the Act reads as follows: 147. If the Assessing Officer, has reason to believe that any income chargeable to tax h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation allowance or any other allowance under this Act has been computed." Under section 147 of the Act, the case can be reopened if there is reason to believe that there is an escaped income for the assessment year. Therefore what has to be examined is whether there was any material for the year under consideration of escaped income. A perusal of the reason recorded shows that the material referred to is relating to the assessment year 1996-97 in which on the basis of the defects found in the books of account, the assessing authority estimated the income by way of best judgment assessment. If on the basis of the defect found in the books of account for the assessment year 1996-97, the income has been estimated by way of best judgment assessment by taking 10 per cent, profit of the gross receipts, it does not mean that the same profit would have been earned in the year under consideration. The assessing authority only proceeded under the presumption in estimating the net profit at the rate of 10 per cent, on the gross receipts. No material has been referred to relating to the assessment year 1995-96 on the basis of which it could be believed that some profit was earned in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief. The hon'ble Supreme Court further observed that though it is true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income-tax Officer on the point as to whether action should be initiated for reopening the assessment yet at the same time we have to bear in mind that it is not any and every material, however, vague and indefinite or distinct, remote and far-fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. In Commissioner of Sales tax v. Bhagwan Industries (P.) Ltd. [1973] 31 STC 293 (SC), it was held that reasonable grounds necessarily postulate that they must be germane to the formation of the belief regarding escaped assessment. If the grounds are of an extraneous character, the same would not warrant initiation of proceedings under this section. If, however, the grounds are relevant and have a nexus with the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the year under consideration, no belief could be formed about the escaped income merely on the basis of the assessment for the year 1996-97. Now let us deal with the decisions cited by learned standing counsel. In the case of Raymond Woollen Mills Ltd. v. ITO [1999] 236 ITR 34, the apex court held that in a writ jurisdiction, the court can only consider whether there was a prima facie case for reassessment and sufficiency of the material cannot be considered. In the case of Kundan Lal Ratan Lal Jain v. Assessing Officer [2000] 245 ITR 434 (All), in which notice under section 148 of the Act was issued on the basis of information relating to the enquiries in which it was found that the land holders whose names were found entered had denied having leased out any land to the assessee and the court had not found the case fit for interference. In the case of Ess Ess Kay Engineering Co. P. Ltd. v. CIT reported in [2001] 247 ITR 818 (SC), the case was reopened on the basis of fresh material obtained in the course of assessment for the next year. The apex court found the material sufficient to reopen the assessment proceeding. The aforesaid cases are not of much help to learned st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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