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TMI Blog2018 (12) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 143(1) of the Act. The assessment was reopened by issuance of a notice under Section 148 of the Act, dated 21.02.2011. A letter, dated 02.11.2011, was sent to the assessee fixing the date of personal hearing on 12.11.2011. In response to the same, the assessee submitted a letter requesting to treat the return already filed on 30.07.2009, as one filed in response to the notice under Section 148 of the Act. During the course of hearing, the appellant/assessee was asked to file details of sources and nature of cash deposits made during the previous year in savings bank account maintained with Axis Bank, Anna Nagar Branch, Chennai. The assessee's authorized representative filed copies of bank statements in respect of savings bank account maintained with Axis Bank, Anna Nagar Branch and Tamil Nadu Mercantile Bank, Aminjikarai Branch, on 21.12.2011, followed by letters, dated 29.12.2011 and 30.12.2011, setting out the details of real estate transactions undertaken by the appellant/assessee on behalf of the company. The assessment was completed and an order was passed on 30.12.2011, by adding the short fall in cash withdrawal of Rs. 10,50,000/- as unexplained income u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials necessary for the assessment. 6. Further, it was stated that the information that the assessee's advance Rs. 2.75 crores was received by the Assessing Officer at the time of scrutiny in the case of borrower only and not at the time of scrutiny assessment of the assessee's return. This order dated 26.05.2016 was impugned in the Writ Petition. The Writ Petition was dismissed by order dated 04.10.2018, holding that the advance made to S.Nagarajan to the tune of Rs. 2.75 crores was not disclosed in the original return filed by the assessee as on 30.07.2009, and though the assessment was reopened under Section 148 of the Act by notice dated 21.02.2011, it was for a different purpose, namely, for verifying the details of sources and nature of cash deposits made by the assessee in savings bank account maintained to the tune of Rs. 93,00,000/-. Even during the reassessment proceedings, the assessee did not file any fresh return, but wanted the return dated 30.07.2009, be treated as return in response to the notice for reopening. 7. Further, the Court held that there is no bar for reopening an assessment more than once within the time prescribed, if the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer should take based on the facts disclosed. In support of his contention, the learned counsel referred to the decision of the Hon'ble Supreme Court in Calcutta Discount Co Ltd Vs. Income Tax Officer and another (1961) 41 ITR 0191; the decision of this Court in Fenner (India) Ltd Vs. DCIT (2000) 241 ITR 0672; the decision of the Division Bench of this Court in CIT Vs. Elgi Ultra Industries (2008) 296 ITR 0573; and the decision of this Court in Tractors and Farm Equipment Limited Vs. ACIT in T.C.(A).No.1548 of 2008, dated 31.10.2018. On the above grounds, the learned counsel prays for setting aside the order passed by the learned Writ Court and allowing the Writ Appeal. 10. Mrs.Hema Muralikrishnan, learned Senior Standing Counsel appearing for the respondent/Revenue referred to the Explanation I to Section 147 of the Act and submitted that reopening was well within the powers conferred under the Act and the first reopening was only for cash deposits with Axis Bank account and no opinion was formed by the Assessing Officer in respect of other matters. The advances made by the assessee came to the knowledge of the Assessing Officer only after the information was given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a non-disclosure of material facts could not be opened for the Court's investigation. 14. In Fenner (India) Limited, (supra), the Court was testing the correctness of a re-assessment proceeding initiated beyond the period of four years from the end of the assessment year and it was held that the Assessing Officer must necessarily record not only his reasonable belief that income has escaped assessment, but also the default or failure committed by the assessee and failure to do so would vitiate the notice and the entire proceedings. 15. In Elgi Ultra Industries, (supra), the Division Bench upheld the order passed by the Tribunal on the ground that all the material facts were available at the time of making the original assessment. Thus, the sheet anchor of the arguments of Mr.Vijayaraghavan is that the assessee was called upon to explain the sources and nature of cash deposits and through her authorized representative had filed the necessary details including the cash flow, which reflected the payments made to S.Nagarajan as advance being a sum of Rs. 27,50,000/-. Therefore, it is submitted that the materials were available even at the time, when the reassessment proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer wants to verify is also clear from reading the reasons for reopening. Therefore, we do not agree with the submissions of the learned counsel that no opinion was formed by the Assessing Officer for being satisfied that there is a case for reopening. 20. Furthermore, the assessee has not filed the balance sheet or statement of affairs as noted by the Assessing Officer and in the return of income, the assessee has filed only statement showing computation of income consisting of salary income and interest income from other sources. Even when the reassessment proceedings were commenced by issuance of notice, dated 02.11.2011, the assessee did not file a fresh return of income, but informed the Assessing Officer to treat the return of income filed on 30.07.2009, as return in response to the notice under Section 147. Thus, whatever was placed before the Assessing Officer through their authorized representative's letter dated 30.12.2011, cannot be taken to be full and true disclosure pertaining to the transactions with S.Nagarajan. 21. Thus, we are satisfied with the reasons assigned for reopening of assessment is just and proper and no opinion was formed during the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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