9911796707
TMI Blog2019 (6) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... respective parties, the matter was taken up for final hearing today. 3. By this petition under articles 226 and 227 of the Constitution of India, the petitioner has challenged the notice dated 28.3.2018 issued by the respondent under section 148 of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), whereby the respondent seeks to reopen the assessment of the petitioner for assessment year 2011-12. 4. The facts stated briefly are that for assessment year 2011-12, the petitioner filed return of income on 27.8.2011 showing total income at Rs. 6,45,322/-. The matter was taken up in scrutiny and the assessment came to be framed under section 143(3) of the Act on 30.1.2013 assessing the total income at Rs. 62,42,503/-. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had failed to disclose the unaccounted cash and, therefore, the Assessing Officer has formed the belief that income chargeable to tax to the extent of Rs. 46,00,000/- had escaped assessment. 5.1 It was submitted that the reasons recorded for reopening the assessment are de hors the record, inasmuch as, the petitioner has fully and truly disclosed the amount of Rs. 46,00,000/- in its books of account. It was further submitted that during the course of scrutiny assessment, the Assessing Officer had gone into this issue and had thereafter not made any addition in that regard and hence, the Assessing Officer seeks to reopen the assessment on a mere change of opinion. 5.2 It was submitted that in the present case, the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income for the year under consideration although the total income of the assessee exceeds the maximum amount which is not chargeable to tax. It was submitted that the Assessing Officer has recorded contradictory facts while recording the reasons which makes it evident that the reasons have been recorded without due application of mind. 6. Opposing the petition, Mrs. Mauna Bhatt, learned senior standing counsel for the respondent submitted that the Assessing Officer has duly recorded satisfaction for the purpose of reopening the assessment which is based upon tangible material namely the report dated 12.7.2010 of the DDIT (Inv.) Unit-1(1) Ahmedabad and has further observed that the petitioner has not disclosed the amount in the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit filed by the petitioner reveals that the Assessing Officer had issued a notice dated 25.9.2012 under section 142(1) of the Act, wherein the Assessing Officer has stated that on perusal of the balance sheet (asset side), it is noticed that the firm has shown loans and advances/deposit with the police, details whereof are set out therein, which includes the amount of Rs. 46,00,000/- deposited with the Dhule Police Station and has called upon the petitioner to give details about the said amount which was lying with the police station. In response thereto, the petitioner had given its reply dated 3.10.2012, wherein at paragraph 17 thereof, the petitioner has given details about the cash seizure by the police department and has further state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 46,00,000/- seized by the Dhule Police in the books of account. Under the circumstances, the observation made by the Assessing Officer that the assessee has failed to disclose the unaccounted cash is clearly contrary to the record of the case. 11. In this case, earlier an assessment had been framed under section 143(3) of the Act for assessment year 2011-12. The impugned notice under section 148 of the Act has been issued on 28.3.2018, which is clearly beyond a period of four years from the end of the relevant assessment year, and therefore, the first proviso to section 147 of the Act would be attracted, consequently, the assessment can be reopened only if there is any failure on the part of the petitioner to disclose fully and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment, the Assessing Officer had applied his mind to this very aspect and had called for details from the petitioner in respect of the amount of Rs. 46,00,000/- deposited with the Dhule Police Station and after considering the explanation tendered by the petitioner did not make any addition in that regard. Evidently, therefore, the Assessing Officer seeks to reopen the assessment on a mere change of opinion and hence, even on this count the assumption of jurisdiction on the part of the Assessing Officer is bad in law. 13. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned notice dated 28.3.2018 issued by the respondent under section 148 of the Income Tax Act, 1961 as well as all proceedings pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
