9911796707
TMI Blog2024 (8) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... he controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing. 5. Brief facts of the case are that the petitioner which is a partnership firm is engaged in the business of stone quarry and filed return of income for the year under consideration on 18.09.2015 declaring total income at Rs. 82,14,560/-. 5.1 The survey action under section 133A of the Act was carried out on 09.02.2016 and certain material was impounded as per which, total cash sale for the year under consideration was brought out at Rs. 2,16,15,655/- against which, cash sale reflected in the books aggregated to Rs. 1,37,21,441/-. 5.2 The petitioner therefore made disclosure of the difference between the total cash sales and the cash sales reflected in the books of Rs. 78,94,214/- (Rs.2,16,15,655-Rs.1,37,21,441) in respect of unaccounted cash sales. The petitioner thereafter filed revised return of income on 27.03.2016 declaring total income at Rs. 1,61,08,860/- including the disclosure of Rs. 78,94,214/-. 5.3 Thereafter the case of the petitioner was selected for scrutiny. Notice under section 142 (1) of the Act dated 12.12.2017 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were considered at the assessment stage as well as addition was made in respect of the same. On the basis of such discrepancy for A.Y. 2016-17, material impounded during the survey relevant to the year under consideration was considered and it was found that total cash sales for the year under consideration as per the impounded material was Rs. 2,41,26,875/- as against which, cash sales of Rs. 2,16,15,655/- only was considered during the survey proceedings as well as assessment proceedings due to the totaling error and accordingly, in account, cash sales of Rs. 25,11,220/- was considered as the income which has escaped assessment for the year under consideration. 5.9 The petitioner by letter dated 09.10.2020 raised objections against the reopening with a request to drop the proceedings. 5.10 The respondent, by notice dated 29.12.2021, provided copy of order disposing of the objections wherein it was held that reopening is justified. Being aggrieved, the petitioner has preferred this petition challenging the impugned notice under section 148 of the Act. 6. Learned Senior Advocate Mr. Hemani for the petitioner submitted that the impugned notice dated 04.05.2020 is issued beyond t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled law that the reopening based on the audit objection is not permissible in the eye of law. 7. On the other hand, learned Senior Standing Counsel Mr Karan Sanghani for the respondent submitted that the impugned notice under section 148 of the Act is issued on the basis of the information found in the impounded documents during the course of survey under section 133A of the Act for A.Y. 2015-16 after getting the approval from the competent authority. It was submitted that the case of the petitioner is reopened within a period of four years from the end of the assessment year after taking approval from the competent authority as per section 151 of the Act. It was submitted that the impugned notice was issued on 04.05.2020 within the extended period in view of the Covid-19 as per TOLA-2020 and the petitioner has furnished the return on 04.06.2020 and consequently, the notice was also issued under section 143 (2) of the Act on 24.09.2020 and thereafter, case of the petitioner was centralized and notice under section 129 of the Act was issued. It was therefore submitted that there was a proper sanction under section 151 of the Act within a period of four years. 7.1 Learned Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both the learned advocates for the parties, it appears that the Assessing Officer has issued the impugned notice for reopening by recording the reasons as under: "1. The assessee is engaged in the business of stone quarry at Village-Alipore, Vansda Road, Taluka: Chikhli, District-Navsari. The assessee filed its return of income for A.Y. 2015-16 on 18.09.2015 declaring total income at Rs. 82,14,560/-. The return of income was revised on 27.03.2016 declaring total income at Rs. 1,61,08,860/- thereby including the unaccounted income of Rs. 78,94,214/-disclosed during the course of survey action carried out on 09.02.2016 u/s. 133A of the Act. The case was selected for scrutiny and order u/s 143 (3) of the Act was passed on 29.12.2017 after making addition of Rs. 1,59,15,085/-on account of carting expenses paid to persons covered u/s. 40A (2) (b) of the Act and of Rs. 99,63,517/-on account of disallowance of claim of additional depreciation. 2. During the course of assessment proceedings for A.Y. 2016-17, materials Impounded during the survey action were verified. On verification, it came to notice that the total cash sales of the assessee for the year under consideration was at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded documents have been reflected in the books of accounts and thereafter, during the course of the assessment proceedings on 26.12.2017, further details was also called for with regard to the impounded material found during the course of survey which took place on 09.02.2016 relevant to Assessment Year 2016-17 explaining in detail regarding total difference in sum total in day wise and amount as mentioned at page No. 60 of BF-15. 10. Hence, during the course of regular assessment, the very issue of totaling difference in the impounded material was considered. Therefore, it cannot be said that the impugned notice is issued on the basis of any new tangible material having live nexus with the escaped income. The Assessing Officer during the course of the regular assessment was having access to the impounded material and once the same is processed by accepting revised return filed by the petitioner subsequently, on the same issue, impugned notice for reopening is not tenable as it would amount that to change of opinion on the part of the respondent Assessing Officer. 11. It is also pertinent to note that the impugned notice is issued beyond the period of four years on 04.05.2020 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
