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TMI Blog2015 (12) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... sual one. The noting has to reveal that as part of the process of reopening the assessment, the AA applied his mind to the relevant materials prior to arriving at the conclusion, even prima facie, that there are 'reasons to believe' that the whole or any part of the turnover has escaped assessment. - mandatory requirement of Section 24 (1) of the DSTA has not been fulfilled in the present case. Schedule 13 of the balance sheet produced by the Assessee clearly discloses the know-how fees in the sum of ₹ 400 lakhs. The extracted passage of the order clearly indicates that the Assessing Officer had perused the balance sheet and thereafter framed the assessment. Consequently, what in fact the AA did was to review his earlier order base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and produced books of accounts, ledger, sale/purchase vouchers, bank books. The same have been checked. The dealer has filed summary, trading A/c with audited balance sheet (balance sheet is consolidated), list of tax paid purchases, which have been test checked Dealer filed list of tax paid purchases for ₹ 6743217/- exemption of tax paid sales allowed on test check. No central sale. All other sales are taxable sales under local Act. There is no sale of asset during the assessment year. Assessment is as follows: GTO 18918250 Tax assessed 737914 ISS 0 Tax dep. 737627 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has received 400 lakh during 2004-2005 as Know-How fees. This turnover has escaped for assessment while assessing the dealer for the AY 2004-05. The said sum of ₹ 400 lakhs was sought to be assessed to sales tax at 8% along with interest. 6. The challenge to the above order of re-assessment failed before the Additional Commissioner who upheld it by order dated 24th March, 2009. It was further upheld by the Tribunal by the impugned order dated 21st August, 2014. 7. While admitting this Appeal on 12th February, 2015, the Court framed the following questions of law: (a) Were the reassessment proceedings justified in law; (b) Could the reassessment premised upon statement of turnover be completed on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the provision and state in the notice to an Assessee that there is reason to believe that the whole or any part of the turnover has escaped assessment. It other words the exercise of reopening of an assessment is not a casual one. The noting has to reveal that as part of the process of reopening the assessment, the AA applied his mind to the relevant materials prior to arriving at the conclusion, even prima facie, that there are 'reasons to believe' that the whole or any part of the turnover has escaped assessment. 10. In response to the above query, Mr Peeyoosh Kalra, learned counsel for the Respondent fairly stated that there was no recording by the AA in the file, prior to the issuance of notice of reassessment, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiated under Section 24 (1) of the DSTA by the AA was without jurisdiction and unsustainable in law. Question (a) is answered in the negative, in favour of the Assessee and against the Department. Consequently, questions (b) and (c) are answered likewise. The question of levy of interest therefore does not arise and question (d) is answered accordingly. 13. The impugned order dated 21st August, 2014 of the Tribunal and the corresponding orders of the Additional Commissioner and the AA are hereby set aside. 14. The appeal is allowed but in the circumstances, with no order as to costs. The refund of the tax if any deposited by the Assessee will be made to it in accordance with law without unnecessary delay. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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