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TMI Blog2015 (12) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... with the authenticated tax audit report cannot be faulted. It is also clear that no conscious view was taken or no opinion was formed based on the impugned Annexure 4 to the tax audit report in the original assessment proceedings. Accordingly, it is not a case for change of opinion or a case of review. Therefore, the case laws cited by the assessee are clearly distinguishable on facts. The action of the Assessing Officer cannot be held to be hit by the embargo placed as per first proviso to section 147 of the Act. Thus, the objection raised by the assessee on lack of jurisdiction is not sustainable in law. - Decided against assessee. We find that the impugned 'Annexure 4' does not reflect the name of the assessee anywhere. Therefore, when seen independent of the tax audit report, the aforesaid Annexure 4 does not show any nexus with the assessee per se. We also find that Annexure 4 has no reference in the tax audit report and thus is not an integral part of tax audit report. This also establishes on facts that there is no nexus or live link between the impugned Annexure and the tax audit report. In view of these to important features, we find no difficulty in accepting the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case are that the assessee is a partnership firm engaged in the business of real estate as promoters and developers. The assessee filed its return of income for assessment year 2003-04 declaring total income of ₹ 1,26,69,300/- along with tax audit report. The assessment was originally completed on 31.03.2006 under section 143(3) of the Act and the income was assessed at ₹ 1,36,55,245/-. 3.1 The assessment was reopened under section 147 of the Act by issuing a notice under section 148 of the Act on 29.03.2010 which was properly served on the assessee on the same date. Thereafter, a notice under section 143(2) of the Act dated 23.09.2010 was issued and served on the assessee. 3.2 The reasons recorded under section 148 of the Act for reopening the assessee are enumerated below ;- The assessee has filed its return of income for A.Y. 2003-04 declaring total income of ₹ 1,26,69,300/- on 27.11.2003. Assessment u/s 143(3) was completed on 31.03.2006 assessing total income at ₹ 1,36,55,245/-. 2. It is notice from Annexure 4 of Tax Audit report (Sr.No.18) that the assessee had taken loan from Shri L.K. Jain (HUF), amounting to ₹ 39,50, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the assessee from Shri L.K. Jain (HUF) stands at ₹ 1,12,88,068/- as appearing in Schedule D of the Balance Sheet as on 31.03.2003. It was submitted before the CIT(A) that the accounts of both the parties i.e. assessee and Shri L.K. Jain (HUF) are reconciled, tallied and appeared in their respective Balance Sheet as on 31.03.2003. The impugned amount of ₹ 47,21,887/- does not appear in the books of any of the parties, since the Annexure 4 to the tax audit report is annexed inadvertently and by mistake. No such amount has been taken as a loan from the purported lender, namely, Shri L.K. Jain (HUF). 5. However, the CIT(A) also did not pay any heed to the submissions of the assessee and confirmed the addition made by the Assessing Officer vide order dated 30.01.2012. 6. The aforesaid order of the CIT(A) was carried before the ITAT. Before the ITAT, the Ld. AR of the assessee also challenged the jurisdiction of the Assessing Officer in invoking section 147/148 of the Act and raised Grounds of Appeal to that effect. The ITAT observed that the issue of lack of jurisdiction with the Assessing Officer was not before the CIT(A). The CIT(A) has decided the matter on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue, on the other hand, submitted that the notice for reopening has been issued within the time limit as prescribed under section 149 of the Act. The assessee has failed to disclose the material facts fully and truly at the time of the original assessment and therefore the CIT(A) has rightly sustained the action of the Assessing Officer. 12. On merits, the Ld. Authorized Representative on behalf of the assessee adverted our attention to the relevant Annexure 4 annexed to the tax audit report as appearing at Page No.12 of the Paper Book, which is the genesis of present controversy. Giving reference to the impugned Annexure 4 annexed to the tax audit report, he made two-fold submissions. Firstly, the aforesaid Annexure 4 is without name of the assessee on the top or elsewhere. He contended that the Annexure 4 has been annexed inadvertently and does not pertain to the assessee. It is annexed an inadvertent error. The printout taken in case of some other assessees might have been annexed with the tax audit report inadvertently in the office of the tax auditor. Secondly, he submitted that there is no reference to Annexure 4 in the tax audit report itself which ends at Annexure 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed based on the impugned Annexure 4 to the tax audit report in the original assessment proceedings. Accordingly, it is not a case for change of opinion or a case of review. Therefore, the case laws cited by the assessee are clearly distinguishable on facts. The action of the Assessing Officer cannot be held to be hit by the embargo placed as per first proviso to section 147 of the Act. Thus, the objection raised by the assessee on lack of jurisdiction is not sustainable in law. We accordingly dismiss the Ground Nos.1 and 2 of the assessee concerning the validity of reopening of assessment. 15. We shall next deal with the issue on merits. We find that the impugned 'Annexure 4' does not reflect the name of the assessee anywhere. Therefore, when seen independent of the tax audit report, the aforesaid Annexure 4 does not show any nexus with the assessee per se. We also find that Annexure 4 has no reference in the tax audit report and thus is not an integral part of tax audit report. This also establishes on facts that there is no nexus or live link between the impugned Annexure and the tax audit report. In view of these to important features, we find no difficulty in accepti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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