TMI Blog2017 (11) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... SAHU, ACCOUNTANT MEMBER For The Assessee : Shri K. Sampath, Advocate For The Revenue : Shri Arun Kumar Yadav, Sr. D.R. ORDER PER BHAVNESH SAINI, J.M. This appeal by assessee has been directed against the order of the Ld. CIT(A)-XIII, New Delhi, dated 04th May, 2010, for the A.Y. 2003-2004, challenging the reopening of the assessment under section 147/148 of the I.T. Act, 1961 and addition of ₹ 65 lakhs. 2. Briefly the facts of the case are that the assessee filed original return of income on 02nd December, 2003 declaring income at loss of ₹ 17,22,956. The return was processed under section 143(1) on 26th February, 2003 at returned loss. Further, order under section 147 was passed on 26th October, 2007 at a loss of ₹ 13,22,956. Notice under section 148 was again issued to the assessee on 30th March, 2010. In the absence of any representation, the A.O. passed the ex-parte re-assessment order under section 144/147 of the I.T. Act, dated 16th December, 2010 and made the addition of ₹ 65 lakhs on account of unexplained cash credit under section 68 of the I.T. Act. 2.1. The assessee challenged the re-assessment order dated 16th Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship concern of Sh. Harish Panwar. He has transferred fund from his individual account in the same branch, where there have been huge cash deposit on the same date of transfer entries. 2. In his statement under oath dated 12.03.2009 he has stated that he has not maintained any bank account in HDFC Bank. In the statement he has accepted that bank account of M/s Amrit Impex (India) has been used for providing of accommodation entries. 3. In the assessment completed u/s 147/143(3) of the IT Act, 1961, in this case dated 26.10.2007 the same has not been added back. Based on the above facts, the amount taken by the assessee of ₹ 65 lacs (in total) as Managers Cheque/cheques from Sh. Harish Pawar Is in fact accommodation entry and formed part of income of the assessee which escaped assessment for the F. V. 2002-03 i.e. A.Y. 2003-04. I have reason to believe that the Income of the assessee chargeable to tax has escaped assessment because of the failure on part of the assessee to disclose its income fully and truly. Issue notice u/s.148 of the I.T. Act. Dated 25.03.2010 Sd/-xxx ( Neha Chaudhary) Dy. Commissioner of Income Tax Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make return under section 139 or in response to notice under section 142 or Section 148 or to disclose fully and truly all material facts necessary for assessment for that assessment year. In this case, four years have already completed on 31st March, 2008 from the end of the relevant assessment year. There is no case of nonfiling of the return of income. The A.O. recorded reasons on verification of record on which all information were available. The A.O. in the reasons has recorded that because of the failure on the part of the assessee to disclose its income fully and truly . However, the requirement of the proviso to Section 147 has been that to disclose fully and truly all material facts necessary for his assessment . The A.O. in the reasons did not mention that assessee has not disclosed fully and truly all material facts for assessment. The A.O. has used the word Income which is not provided under section 147 of the I.T. Act. As per the reasons itself, the report of ADIT (Inv.) was already with the A.O. about the receipt of accommodation entry by as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Titanor Components Ltd., vs. ACIT and others (2012) 343 ITR 183 (Bom.) held as under : Where a reassessment is sought to be made after four years the power conferred by section 147 of the Income-tax Act, 1961, does not provide afresh opportunity to the Assessing Officer to correct an incorrect assessment made earlier unless the mistake in the assessment so made is the result of a failure of the assessee to fully and truly disclose all materials facts necessary for assessment. There is a difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding the material facts fully and truly. It is only in the latter case that the Assessing Officer would be entitled to proceed under section 147. Held, allowing the petition, that the Assessing Officer had not recorded the failure on the part of the petitioner to fully and truly disclose all material facts necessary for the assessment year 1997-98. What was recorded was that the petitioner had wrongly claimed certain deductions which he was not entitled to. The reassessment proceedings initiated in the year 2004 were not valid. 4.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed the reopening of the assessment on identical facts in the matter. Considering the above discussion, it is clear that assessee disclosed primary facts and information regarding accommodation entry was already with the Department. Therefore, no new material was with the A.O. to form second time the reasons that income chargeable to tax has escaped assessment. There is no failure on the part of the assessee to disclose fully and truly all material facts relevant for the assessment for assessment year under appeal. Therefore, reopening of assessment after expiry of four years from the end of the relevant assessment year is clearly barred by time in this case. The A.O. therefore, did not have any valid reasons for reopening of the assessment and would not get jurisdiction to proceed against the assessee under section 147 of the I.T. Act. We, accordingly, set aside the orders of the authorities below and quash the reopening of the assessment under section 147/148 of the I.T. Act. Resultantly, the entire addition stands deleted. There is no need to decide the addition on merits separately. 6. In the result, appeal of assessee is allowed. Order pronounced in the open Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
