TMI Blog1995 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... t of that venture was agreed to be shared equally by the five dealers including the petitioner who constituted this syndicate. According to the petitioner, the total profit came to Rs. 93,695 and the share of the assessee came to Rs. 18,737. The petitioner included the said amount of Rs. 18,737 in the total income. The Income-tax Officer did not accept the submission for the reason that there was no written agreement amongst the five dealers and the bills of purchase and sales were in the name of the petitioner-firm and that no separate accounts had been maintained by the petitioner-firm and that the accounts of the other co-sellers had not been separately maintained and that there was no separate capital account of the co-sellers. He, accordingly, added the entire amount to the income of the petitioner instead of one-fifth of the amount. The petitioner, against the said order of assessment dated March 27, 1987, passed by the Income-tax Officer, Circle (V), Ward 'B', Ahmedabad, preferred an appeal to the Deputy Commissioner of Income-tax (Appeals), ARV, Ahmedabad. It was submitted by the petitioner that a sum of Rs. 40,000 was deposited as tender standard money to the mills by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -------------- Marsdan Mills Monogram Mills Total ----------------------------------------------------------------- Rs. Rs. Rs. Sales 56,94,822 84,42,741 1,41,37,563 Purchase 47,46,076 70,71,640 1,18,17,716 ----------------------------------------------------------------- Profit 9,48,746 13,71,101 23,19,847 ----------------------------------------------------------------- 2. On a reference to the return of income filed by you and the statements accompanying the said return of income, I find that this particular source of income has not been disclosed and in the result, the income as shown in the preceding paragraph has escaped assessment. 3. I may bring to your attention that the escapement of income as stated above stands duly established in view of the following facts : (1) The documentary evidence showing the business done in the products of the two mills and the profit earned have been recovered from your premises in the course of search. (2) The author of the relevant papers, viz., Shri Sugan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he place of the petitioner. It was also pointed out that the syndicate led by the petitioner earned only Rs. 93,695 and the other parties earned the profit shown against their names and that aspect was discussed by the assessing authority before passing the order under section 143(3) of the assessment year 1984-85. The petitioner says that the said reply was personally handed over to the Income-tax Officer on March 29, 1988, and, on the same day, the Income-tax Officer served upon the petitioner the impugned notice dated March 29, 1988. Mr. J. P. Shah, learned counsel appearing for the petitioner, contends that the impugned notice on the well-known and well-settled law that a change of opinion on the same facts and on the same evidence cannot be a ground to reopen the assessment, is wholly without jurisdiction. He submits that this is no more different than that of an attempt by the succeeding officer to look into the same case and the same material over again because his opinion is different than that of the appellate authority, viz., Deputy Commissioner (Appeals). The respondent has not filed a reply to the petition. However, Mr. B. J. Shelat, learned counsel for the Revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the memo dated March 18, 1988. Firstly, it is stated that in the year 1984-85, the petitioner-firm had entered into the transaction of purchase and sale of cloth manufactured by the Marsdan and Monogram Mills and in the process earned huge profit of Rs. 23,19,847, which has not been disclosed and as such escaped assessment. During the original assessment proceedings, an explanation as regards the goods purchased from Marsdan and Monogram Mills was submitted along with the relevant materials. It was pointed out that there were certain parties in the market including the petitioner who were interested in purchasing the goods of Marsdan and Monogram Mills both lying in the custody of the High Court as well as lying with certain other persons and accordingly the interested persons/buyers purchased the goods of the said mills. As the buyers were together only in respect of purchasing the goods of Marsdan and Monogram Mills, the parties decided as to how to trade in the particular goods which might render profit to all the parties. In the meetings, charts used to be prepared of estimated profit. All such charts of estimated profits or estimation were produced in the original assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the communication dated October 1, 1987, annexure " J ", before the order of assessment in the original proceedings. In paragraph 3 of the communication dated March 18, 1988, certain reasons have been given to substantiate the allegations of escapement of income. The first reason given is that the recovery of certain documentary evidence from the premises of the petitioner-firm during the course of search. This document was very much available during the original proceedings. The second reason given is the statement of Sugansingh. This statement was also in existence during the original proceedings. The third reason is with respect to the constitution of the syndicate. It is evident from the above discussion that this aspect was thoroughly discussed and a positive conclusion was arrived by the Deputy Commissioner (Appeals). The fourth ground given is the account of common management. All these aspects have been considered in the original proceedings and now there is nothing but a change of opinion because of the change of the Income-tax Officer. In fact, even the earlier Income-tax Officer had not agreed with the contention of the petitioner-firm with respect to the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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