9911796707
TMI Blog2024 (10) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... "2.1 Whether ITAT was legally justified in holding that reopening made by the Assessing Officer was without application of mind ignoring the fact that reopening was made by the Assessing Officer based on credible facts of suppression of turnover as unearthed during the survey conducted by the Enforcement branch of Trade & Taxes?" 3. For the purposes of disposal of the present appeal, we deem it apposite to take notice of the following essential facts. Undisputedly and for Assessment Year ["AY"] 2005-06, the petitioner had been assessed in accordance with the provisions of Section 143(3) of the Income Tax Act ["Act"]and an assessment order came to be framed on 08 March 2006. Subsequently, proceedings under Section 147 of the Act came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se relates to Assessment Year 2005-06 and 2006-07. Further, from the perusal of the above facts and records, it is clear that M/s Hari Steels and General Ind. Ltd. has suppressed the turnover by maintaining duplicate set of books. It is noted that he turnover suppressed is the income concealed for the income tax purposes. The difference in turnover for the two financial years for which action can is required to taken as per the provisions of the Income Tax Act is worked out as under: S. No. F. Year Sale amount of higher value of invoices Sale amounts as per books Difference 1 2004-05 Rs. 172,09,86,183 Rs. 150,93,48,131 21,16,38,052 2 2005-06 Rs. 150,74,84,206 Rs. 139,56,98,447 11,17,85,759 In view of the facts mentioned abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of the order of Hon'ble Delhi High Court in the case of GT vs. Usha International Ltd. [2012]348ITR4S5, the reopening of the assessment cannot he held to be in the nature of "change of opinion", as the Ld. AO had not formed any opinion in the matter. Hence, subsequently it cannot be held that the Ld. AO was not in possession of the new material. It is evident that subsequent to passing of the original assessment order, specific information from Trade and Tax Authorities was received in which the exact modus operandi used by the appellant in declaring sales at a lesser value than the one mandated by the Toyota Kirloskar India Ltd, was found during the survey/search operation. This information certainly constitutes a new materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surrounding the proceedings which had been drawn by the Sales Tax authorities in paragraph 7 of the order impugned before us and is noted as follows: "7. We have considered the submissions of both the sides and have gone through the entire material available on record. Before we consider the legal contentions of the assessee, we deem it proper to mention here the chronological sequence of events in the instant case as under: 08.03.2006: An exparte assessment was passed by Sales Tax Authorities raising a demand of Rs. 4,74,56,058/-. 11.05.2006: A survey was conducted by Enforcement Branch of Trade & Taxes Deptt. At the premises of the assessee, where it was found that the assessee has sold 2187 Cars of Toyota Company instead of 1872 Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation Wing, giving the details of survey by Enforcement Branch of Sales Tax Deptt. The position of demand/suppression made by authorities of Sales Tax Deptt as well as revenue authorities below us, on the basis of subject survey is summarized as under:- Suppressed sale as per Survey team : Rs. 21,16,38,052/- Suppressed sale as per order dated 29.01.2008 : Rs. 3,82,55,045/- As per Appeal order of Spcl. Commissioner: Trade & Taxes Deptt. : Rs. 1,09,40,457/- Suppressed sales worked out by Assessing Officer u/s. 147 : Rs. 21,16,38,052/- Suppression worked out by ld. CIT(A) (i). Sales : 3,82,55,045 (ii). Purchase: 62,89,918 : Rs.4,45,44,963/-" 8. As is manifest from the above, on the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ground alone. 11. Ultimately, the Tribunal has on due consideration of the facts as they obtained and existed at the time when the Section 147/148 notice came to be issued has come to hold as follows:- "8. An insight over the above chronological events and position of demands/suppression at various stages of Sales Tax Proceedings and Income-tax proceedings, as noted above, goes to show that on the basis of same survey report various authorities have taken different stands. The impugned information regarding survey by Sales Tax Department has been solely used by the Assessing Officer in letter and spirit for formation of belief of escapement of income without making any enquiry or application of mind, particularly when subsequent procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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