TMI Blog2019 (1) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... . There was no scope of change of opinion. The income tax department cannot presume something to have happened five years ago just because in the assessment year 1997-98 the assessee failed to explain its source of fund under Section 68 and cash fund under Section 269SS. It did not mean that it indulged in similar activity in the previous year 1992-93. For all those reasons we feel that the Tribunal was absolutely right in dismissing the appeal against the order of the CIT(A). - decided in favour of assessee - ITA 454 of 2008 With ITA 510 of 2008 - - - Dated:- 21-12-2018 - Justice I.P.Mukerji And Justice Amrita Sinha For the Appellant : Mr. P. K. Bhowmick, Mrs. Asha Gourisania Gutgutia, Mr. Aniket Mitra For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of this section shall not apply to any loan or deposit taken or accepted from, or any loan or deposit taken or accepted by,- (a) the Government; (b) any banking company, post office savings bank or co- operative bank; (c) any corporation established by a Central, State or Provincial Act; (d) any Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956 ); (e) such other institution, association or body or class of institutions, associations or bodies which the Central Government may, for reasons to be recorded in writing notify in this behalf in the Official Gazette: ITA 454 of 2008 The respondent/assessee filed a return for the assessment year 1992-93 declaring an inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no ommission or failure on the part of the assessee to disclose fully and truly all material facts at the time of original assessment and the allegation that the deposits were unexplained were not based on any cogent material evidence on record. The same analogy applies in respect of the contribution towards share capital by the members. The tribunal upheld the order of Commissioner of Income Tax (Appeals) and dismissed the revenue s appeals. Hence, the Section 260A appeal by the revenue. Two sections of the Income Tax Act, 1961 have become relevant in this appeal. First is Section 68 which provides that where any sum is found credited in the books of an assessee relating to a previous year and the assessee is unable to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court found the explanation given under Section 68 of the Act before the lower adjudicating authorities to be most unsatisfactory. The conclusion of the said authorities that the said fund was to be added to the income of the assessee to be well founded in evidence. It did not appreciate the interference of the High Court in the finding of those facts in a Section 147 proceeding. These two cases cited on behalf of the appellant do not help the department at all. In the first case (203 ITR 456) there was specific information at a later point of time. The second case does not assist the appellant because the court is not called upon to adjudge whether the assessee was able to explain its source of fund or cash money. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (2009) 312 ITR 166 (Delhi) is more closer in facts to this case. If renovation work was done in this assessment year it could not be presumed that the same work had been done in the previous year. It was mere suspicion which could not take the place of belief as held by the Delhi High Court. When the income tax department presumed 10% of the gross receipt would constitute profit for a particular assessment year, it did not follow that the same formula had to be applied to the earlier assessment year and the assessment reopened under Section 147/148. That would amount to presumption and guess work and no valid material to reopen the case . The application of mind of the income tax officer should be that of a prudent and rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesse filed an appeal against this order before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) by his order dated 5th July, 1996 partly allowed the appeal filed by the assessee. The assessing officer initiated reassessment proceedings. By an order under Section 143(3)/251 dated 29th January, 1999 he disallowed the reimbursement of expenses of ₹ 1,10,30,840 and recomputed the total income at ₹ 1,85,81,390. The assessee again preferred an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) by his order dated 26th March, 2001 set aside the issue of reimbursement of expenses of ₹ 1,10,30,890. The revenue filed a second appeal against both the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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