9911796707
TMI Blog2024 (5) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 or 41(2) of the Income Tax Act in the re-assessment proceedings. 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (Appeal) is right in ignoring the observation of the AO that the assessee has failed to furnish before the AO the documentary evidence relating to transfer of bank loan liability of trucks sold which were subsequently furnished before the Ld. CIT(A) during the course of appellate proceedings. 4. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeal) was correct in ignoring the fact that in the original appellant proceeding he could have gone into only the question raised before him without going to into other issues which necessitated action u/s 147 of the Income Tax Act. 5. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeal) has not appreciated the fact that he has all the powers to go beyond the remand report given by the AO and could have considered the issues raised in reassessment proceedings afresh and upheld the addition made by the AO. 6. Any other ground that may be raise during the proceedings." 2. The assessee filed C.O.No.02/PUN/2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The ld.DR for the Revenue relied on the order of the Assessing Officer. Cross Objection Appeal No.02/NAG/2020 (Assessee) : Findings & Analysis : 5. We have heard both the parties and perused the records. We will first take up the assessee's Cross Objection Appeal. 5.1 In this case, original assessment order was passed on 22.12.2011. 5.2 The reasons recorded by the AO are as under : "In this case, the assessment was completed vide order u/s 143(3) dated 22/12/2011, assessing the Total Income at Rs. 2,69,10,137/-. The assessee sold most of its trucks during the year to its sister concern, M/s KSR Freight Carriers and M/s Shree Chadda Roadlines who were shown as creditor to the assessee to the extent of total liability amounting to Rs. 2,31,89,907/- payable to its financier bankers towards the vehicles. The A. O. made an addition of Rs. 2,31,89,907/- as unexplained credit u/s. 68 of the I.T. Act, as he was not convinced with the explanation given by the assessee for creation of liability by the assessee. During the appellate proceedings, the assessee submitted that the liability prior to the date of sale towards vehicles was taken over by the purchaser by executing a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks to transfer the loan liability and that the purchaser of trucks has also requested the bank to transfer the balance loan amount of the assessee in its name and accordingly, the banks have rescheduled the loans, is found to be factually incorrect as it is seen from the loan agreement with ICICI Bank dated 28/05/2008, furnished by the assessee vide letter dated 16/09/2016 that there is no such mention of transfer of loan or rescheduling of loan from M/s KSR Transport Company (Seller) to M/s Shree Chadda Roadlines and M/s KSR Freight Carriers (Purchasers). It is further seen that the said loan agreement speaks of fresh credit facility granted to the applicant i.e. the purchasers of trucks. On perusal of the loan agreement, it is seen that the recitals / terms & conditions mentioned therein does not speak of transfer of loan or rescheduling loan. From the said loan agreement of the purchasers, it is clear that the purchasers of trucks have not discharged assessee's liability to the Bankers rather, it says that fresh credit facility has been granted to the applicant i.e. the purchasers of trucks. It is further seen that the request letters made by the assessee as well as the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere, in the reasons recorded, AO has not alleged that assessee failed to disclose all material facts. In the reasons recorded for reopening, the AO stated "on verification of the agreements, it is noticed that as per the agreement, purchase cost receivable by the seller will be adjusted against the existing liabilities......." Therefore, AO stated that he had reason to believe that capital gain on "Sale of Vehicles" had escaped assessment. Thus, it is very much clear from the reasons that AO is referring to the same agreements which were examined by the AO during original assessment proceedings and which has been mentioned in the original assessment order. The issue of "Sale of Vehicles" is discussed in the original assessment order. In these facts, the reasons recorded are nothing but change of opinion. Therefore, we are of the opinion that AO has reopened assessment merely on the basis of change of opinion. 5.6 Proviso to section 147 of the Income Tax Act is reproduced here as under : "Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of mind of the Assessing Officer. The reasons recorded should be self-explanatory and should not keep the assessee guessing for the reasons. Reasons provide link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
