TMI Blog2018 (12) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of assessee. - 146/Del/2015 - - - Dated:- 31-10-2018 - Shri. N. K. Saini, Accountant Member And Shri K. Narasimha Chary, Judicial Member For the Appellant : Shri Salil Aggarwal, Advocate, Shri Shailesh Gupta, Advocate And Shri Madhur Aggarwal, Advocate Respondent : Ms Ashmia Neb, Sr. DR ORDER PER NARASIMHA K. CHARY, JM This is an appeal by the assessee against the order dated 10th November 2014 in Appeal No.97/2014-15 of the ld. Commissioner of Income-tax (Appeals)-II, New Delhi for Asstt. Year 2006-07. 2. Brief facts of the case are that the assessee is a company engaged in the execution of contractual works including the extension of widening of highways, construction of flyovers, culverts, rehabilitation/strengthening of railway tracts, pavements, road surface distress, improvement of cross drainage structures. For the Asstt. Year 2006-07, they have filed their return of income on 2.2.2007 declaring an income of ₹ 54,14,79,842/-. Assessment u/s 143(3) of the Act was completed at an income of ₹ 54,16,13,061/- by order dated 15.10.2008. 3. Subsequently, pursuant to the search operations carried out at the premises of DSC Group o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchases made by the assessee from M/s JMD Building Material Suppliers were duly supported by vouchers and purchase payments were made through banking channels and the authorities used evidence the material gathered as a result of enquiries conducted from various parties at the back of the assessee and without confronting the assessee with such material. 5. It is the argument of the learned AR that whatever the material that was gathered by the learned AO in connection with the search in the premises of M/s JMD Building Material Suppliers does not ipso fact indicate that the assessee is guilty of not disclosing fully and truly all material facts necessary for his assessment for this Asstt. Year. He further submitted that after the assessee submitted its objection, the learned AO failed to consider the same in a proper perspective but mechanically dispose of that by order dated 22.1.2014 but as a matter of fact such an order suffers the non application of mind as to the objections taken by the assessee. He further submitted that it is mandatory on the part of the revenue to establish that in case of the notice u/s 148 after the expiry of four years from the end of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GH COURT a) WPC 747/2014 .dated 17.10.2014 Global Signal Cables (India) Pvt. Ltd. vs. DCIT, 368 ITR 609 b) ITA No. 468/2014 dt 19.08.2014 CIT vs. Star Finvest Pvt. Ltd. c) [2014] 226 Taxman 162 (Del) M/s Swarovski India Pvt. Ltd. d) [2013] 355 ITR 356 (Del) Rural Electrification Corpn. Ltd. e) WPC 284/2013 dated 23.05.2013 Microsoft Corporation India Pvt. Ltd. f) 313 ITR 321 JSRS Udyog Ltd. vs. ITO g) 177 Taxman 300 CIT vs. DCM Ltd. h) 165 Taxman 84 CIT vs. Intercontinental Trading Investment Co. Ltd. i) 171 Taxman 379 Indian Fertilizer Co-op Ltd. j) 303 ITR 155 CIT V Indian Sugar and Gen. Inds Exim Corpn k) 324 ITR 234 DT and TDC Ltd. vs. ACIT 1) 308 ITR 22 Wei Inter-trade Pvt. Ltd. vs. ITO m) 308 ITR 38 Haryana Acrylic Manufacturing Company v. CIT n) 343 ITR 141 Atma Ram Properties Pvt. Ltd. vs. DCIT o) 215 Taxman 441 Shivalik Bimetal Controls Ltd.vs.ITO p) 354 ITR 24 CIT vs. Suren International Pvt. Ltd. q) [2009] 119 ITD 175 (Del) M.M.T.C. Ltd. vs. DCIT r) [2009] 184 TAXMAN 1 (Del) Jal Hotels Co. Ltd. vs. Asst.DIT 9. In this matter, the original assessment was completed by order dated 15.10.2008 assessing the income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order itself contains that the assessee having obtained the copy of the reasons filed the objections and the said objections were disposed of by a speaking order dated 22.1.2014. 11. In respect of the grievance of the assessee that the material was not furnished to the assessee, it is the submission of the learned DR that this is a case involving the group companies and there is no material that is extraneous to this company that was relied upon by the AO, as such, no question of furnishing or non furnishing material to the assessee arises and the assessee cannot have any grievance on that score. Lastly, she submitted that adequate opportunity was given to the assessee which the assessee has not availed to produce any additional evidence by filing application under Rule 46A. 12. In the case in hand the reasons recorded by the learned AO are to the following effect: Consequent upon search operation carried out at the premises of the DSC Group of cases on 28.08.2012, the following suppression of income by the group company M/s. DSC Limited has emerged. M/s. DSC Limited has shown huge purchase of boulders of about ₹ 69,00,00,000/- in its books from JMD Bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961. 13. A careful reading of the reasons extracted above, it is clear that it is not the case of the revenue that there is any escapement of income because of the non furnishing of the material facts truly and fully by the assessee. Further, para 4 of the assessment order clearly shows that because the assessee company made purchases from M/s JMD Building Material Supplier for which invoice be raised by the firm to the company and the assessee made the payments and the assessee failed to produce the record relating to the invoice/khakis on the ground that such record was lying with the Directorate General of the Central Excise Intelligence, New Delhi and that is the reason why their remains unverified purchases consequent to which learned AO made the additions. This is a matter of verification of the record subsequent to the reopening of the proceedings and because the assessee could not produce the relevant record on the ground that such record is lying with the Directorate General of the Central Excise Intelligence, New Delhi, the addition is made. It is not as that the learned AO made these enquiries before resorting to the reopening of the matter. It appears that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion u/s 147 could be taken beyond the four year's period in the circumstances narrated above. 15. While following the decision in the case of Wel Intertrade P. Ltd vs ITO (2009) 308 ITR 22 (Delhi) and Duli Chand Singhania Vs. ACIT (2004) 269 ITR 192 (P H) for the principle that in the absence of an allegations that escapement of income had occurred by reason of failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment, which is a sine qua non for assuming jurisdiction under section 147 of the Act in a case falling under the proviso thereto, any action taken by the Assessing Officer is wholly without jurisdiction. 16. While following the above decision in ITA No.2654/2013 in the case of Jindal Pipes Ltd., a coordinate bench of this Tribunal reached a conclusion that when there is no mention or allegation that there has been any failure or omission on the part of the assessee to disclose fully and truly all the material facts necessary for the purpose of assessment, there is failure to meet the statutory requirement and consequential reassessment proceedings are liable to be quashed. 17. In the instant case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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