9911796707
TMI Blog2012 (12) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... eport was furnished by the Investigation Wing of the Income Tax Department to various AOs. Relying upon one of these reports, the AO, in the present appellant's case, issued notice under Section 147, seeking to reopen the assessment proceedings. The relevant part of the notice, recording the AO's "reasons to believe" why reassessment was necessary - states as follows: "The investigation wing on the basis of enquiries conducted/information collected has sent the names and addresses and bank accounts of the beneficiaries and also the value of entry taken by such beneficiaries from different entry operators. The names of entry giver and bank accounts of the beneficiaries and also the value of entry taken by such beneficiaries from different entry operators. The names of entry giver and bank accounts through which the entry was given has also been informed by the Investigation Wing. One such beneficiary is M/s. Pratibha Finvest Pt. Ltd. As per report of Inv. Wing, M/s. Pratibha Finvest Pvt. Ltd. had received accommodation entry amount of Rs.5,08,687/- in the F.Y. 2000-01 relevant to A.Y. 2001-02 under the garb of share application money/share cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been accepted by AO. Regarding the addition made by AO as an alleged entry operator @ 2% commission earned on the basis of deposits of Rs.55,44,816/- in bank account is concerned in this connection firstly it is clarified that deposit in the back account is Rs.51,44,650/-. As a matter of fact AO has taken the wrong amount. This is further stated before your honour that credit transaction in the bank account is on account of interest received from various parties and or refund of old deposits and all the transaction has been carried out in the normal course of business. Copy of bank account along with narration of entries and confirmation filed the appellant company during the course of assessment proceedings as desired by AO are enclosed herewith for your honour's ready reference. No defect has been pointed out by AO. Addition has been made arbitrarily without bringing any adverse material. In view of above mentioned facts and documentary evidences placed on record your honour will appreciate that: 1. AO has not brought any material on record to prove and establish that deposits of amount in the bank account of H.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded during the assessment proceeding and it was only on 20.10.2009 that the assessee has asked for reasons for reopening which were provided to him. There is no calculation mistake as pointed out by the AR of the assessee with regard to the credits in the bank account. Since the assessee was completed on the basis of information received from Investigation Wing, the Assessing Officer rightly made the addition In view of the facts and circumstances, as discussed at length above, the contentions raised by the assessee during the appellate proceedings are not correct and the appeal of the assessee may be decided on merits." A copy of the remand report was made available to the appellant for his comments on 11.03.2010. However, the appellant has not given any comments on the remand report." 6. On the basis of the materials, the CIT(A) held that the assessee claimed to engage in the business of sale and purchase of shares and financing, and showed a loss of Rs. 2.01 lakhs in share trading. The CIT(A) noticed that no documentary evidence was forthcoming. The AO says that other income claimed as consisting of commission received and commission paid was unsupported b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the information of the Inv. Wing. 22. The matter was remanded by the CIT(A) to the file of the AO for his comments. 23. In the remand report dated 22.2.10, the AO had rebutted the assessee's claim stating, inter alia, that the assessee had deposited cash in its bank account on various dates during the period under consideration; and that the assessee had remained unable to substantiate its claim with supporting documentary evidence, in the assessment proceedings. 24. On being confronted with the AO's Remand Report, the assessee company did not file any rejoinder before the CIT(A). 25. The CIT(A) took into account of the above. This included the evidence now pointed out as having been filed by the assessee. It was on due consideration of the matter that the CIT(A) found that the assessee had remained unable to explain the credit balance of Rs.5544816 in its bank accounts. Though it had been held out by the assessee that the credit in the bank account was from interest received from various parties and/or refund of old deposits concerning transactions carried out in the normal course of the assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first instance, impelled the Department to reopen the proceedings. In this regard, the assessee relies upon the decision of this Court in Ranbaxy Laboratories Ltd. v. CIT 336 ITR 136. In that case, the Court had held that once the assessing officer assumes jurisdiction to reopen proceedings under Section 148, he cannot, in the absence of any material with regard to the rationale for the reopening, independently make additions in respect of other income which escapes assessment. Learned counsel also relied upon the judgment of the Rajasthan High Court in Dr. Devender Gupta v. CIT 2011 (336) ITR 59 (Raj). This Court is of the opinion that the amplitude of the powers under Section 147 and 148, despite the amendment brought about by Explanation 3 to Section 147, is not as restricted as is sought to be contended in this case. The said Explanation undoubtedly has been added recently; to this Court's mind it clarifies what existed previously. Speaking on this, the Supreme Court in V. Jagan Mohan Rao and Others v. Commissioner of Income Tax and Excess Profits Tax, A.P. 1970 (75) ITR 373, stated that: ".......under Section 34 for the assessment year 1944-45 were legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who, however, sought for remand report. A careful reading of the paras 4.1 to 4.3 of the appellate Commissioner's order would reveal that the materials produced before the AO and also discussed by the AO in the remand report were taken into consideration. Furthermore, it is not as if the entire amount of Rs.55,44,816/- which was shown to be the balance in the bank account of the appellant is sought to be added back. In that regard, the assessee's explanations were somewhat accepted. The Revenue has proceeded on the footing that the appellant provided some services and charged him only to the commission reasonably earned by it, i.e. Rs.1,10,896/-. Being a pure question of fact, this Court cannot, exercising jurisdiction to consider substantial questions of law, convert it into a third Court of fact and examine the concurrent findings. 11. As a result of the above discussion, the Court is satisfied that the ITAT's order does not call for any interference. 12. For the above reasons, the Court does not find any substantial question of law which requires to be answered in the appeal. Similarly, the petition seeking intervention of Court under Article 226 in respect of the ITAT's ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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