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TMI Blog2021 (2) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... without any scrutiny. (b) Survey under Section 130 A of the Act was conducted on 02.12.2016 in the case of Aphrodite Infra Pvt. Ltd, Surat and back up of computer, laptop and mobiles were taken in Hard Disk and the gadgets were impounded. After verification of the back up data, the authority found one undisclosed bank account of the writ applicant bearing Account No.1002100006771 with the Prime Cooperative Bank Ltd. at Surat during the F.Y. 2013-14. During the course of survey, the statement of the writ applicant was recorded under Section 133 of the Act, wherein, he admitted that the alleged bank account was maintained by him and the same was opened and closed in the F.Y 2013-14. (c) The Investigation Wing, Surat had reported the aforesaid facts to the respondent. (d) After receiving the information, the respondent had verified the return of income and other documents related to the undisclosed bank account and the information was found correct as there was credit entries of Rs. 85,11,543/, which was not reflected in the IT return as this amount is chargeable to tax and has escaped assessment within the meaning of Section 147 of the Act. (e) Before issuing the notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni, wherein he has also stated that bank account with Prime Coop. Bank Ltd. Having A/c. No.10021001006771, is not show n in the return of income, the credit appearing in the bank statement at Rs. 85,11,543/becomes unaccounted income of the assesse. Thus, it is clear that income to the tune of Rs. 85,11,543/has escaped assessment for the F.Y. 2013-14. 5. In view of the above, i have reason to believe that income chargeable to tax for the above staed assessment year has escaped assessment within the meaning of Section 147/148 of the Act." (f) Based on the aforesaid reasons for reopening, the impugned notice dated 26.03.2015 seeking to reopen of the assessment of the writ applicant for the assessment year 201415 came to be issued. (g) The writ applicant had filed return of income on 30.04.2019 in response to the notice issued under Section 148 of the Act declaring the same amount what he had declared in his earlier return. (h) Pursuant to the notice, the writ applicant submitted written objections and raised the following main contentions, which reads as under: (1) the facts regarding nondisclosure of the account in ITR is absolutely baseless and factually incorrect. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not reopened solely on the basis of the information supplied by the Investigation Wing of the Department. In fact, the entire record available in this office has been verified to reach at the bona fide conclusion that whether the income chargeable to tax has escaped assessment or not. Only after reaching to this conclusion, the reasons for reopening of assessment were recorded, which were confirmed by the competent authority while according permission for issuance of notice under Section 148 of the Act, which can be seen from the reasons that the entire return of income, ITR details and other documents available in this office has been verified before recording of the reasons. (4) As regards the ledger account of other income and computation of income showing Rs. 1 lakh without any documentary evidence, there are only accounting representation of data and has no basis of justify as to how huge amount of cash deposits in the bank accounts represents income to the extent of Rs. 1 lakh only. (5) The documents and various data of income thereunder by this office is clearly laid out in the reasons, also indicates and fully established that the income which is chargeable to tax has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out that, the applicant had disclosed all material facts necessary for his assessment for the year under consideration fully and truly, so far details of bank statements etc is concerned. In this regard, it was submitted that, there is no any specific column in the ITR to indicate the closed account. Thus, it is evident that, the writ applicant had disclosed all the bank details and have not suppressed anything and as such no duty cast on the part of the writ applicant to disclose further facts. In this regard, reliance has been placed upon the decision of this Court in the case of Bhavik Bharatbhai Pandya Vs. Income Tax Officer [2019 TIOL 2298-HC-AHM-IT] to further submit that, the assessee is not under legal duty to disclose about the undisclosed bank account as there is no any separate column for such disclosure in the ITR and therefore, omission to disclose the account cannot lead to the reassessment. d) It was contended that, most of the transactions of the account maintained with the Prime Coop. Bank Ltd., were done through cheque and all the entries of said transactions were reflected in the bank statement. Therefore, the reasons for reopening of the assessment that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeable to tax has escaped assessment for any assessment year, he may subject to the provisions of Sections 148 to 153 of the Act, assess or reassess such income and also any other income chargeable to tax, which has escaped assessment and which comes to his notice subsequently in the course of the reassessment proceedings. As per the first proviso, where an assessment under Section 143 or under Section 147 has been made for the relevant assessment year, no action shall be taken under Section 143 after expiry of four years from the end of the relevant assessment year unless any income chargeable to tax has escaped assessment for such assessment year by reason of failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under Section 142(1) of the Act or Section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. Therefore, before reopening of the assessment, two conditions are required to be satisfied viz. (I) the Assessing Officer must have reason to believe that the income chargeable to tax has escaped assessment and (ii) he must also have reason to believe that such escapement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the assessee to bring to the notice of the respondent with regard to transactions made in the bank account which were relevant for the assessment for that year. Merely submission or production of books of accounts or other documents is not sufficient. It is profitable to refer the explanation 1 of Section 147 of the Act, which explains that, the production before the Assessing Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of foregoing proviso. 15. We may refer to and rely upon the case of Calcutta Discount Company Ltd. Vs. Income Tax Officer, Companies District & Anr. [1961 AIR 372], the relevant observations made in para9 are as under: "There can be no doubt that the duty of disclosing all the primary facts relevant to the decision of the question before the assessing authority lies on the assessee. To meet a possible contention that when some account books or other evidence has been produced, there is no duty on the assessee to disclose further facts, which on due diligence, the Income-tax officer Officer might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. 20........At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction." 19. Thus, in overall consideration of the matter, it cannot be said that there was no material before the Assessing Officer to reopen the assessment and he proceeded mechanically based on the sole information received from the Investigation Wing and the impugned notice is without jurisdiction and contrary to Section 147 of the Act. Therefore, we are satisfied that, there was enough material before the Assessing Officer and he was justified to reopen the assessment for the year under consideration. 20. For the foregoing re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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