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TMI Blog2016 (4) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... , JM and Shri Waseem Ahmed, AM For The Department : Shri S.P.Choudhury Shri Soumitra Choudhury,Advocate For The Assessee : Shri Rajendra Prasad, JCIT, Sr.DR ORDER PER BENCH ITA No.997/Kol/13 is an appeal by the Revenue while ITA No.556/Kol/13 is an appeal by the Assessee. Both these appeals are directed against the order dated 4.1.2013 of CIT(A)-XX, Kolkata, relating to AY 1996-97. 2. At the time of hearing of the appeal, the learned counsel for the Assessee submitted that the Assessee does not want to press adjudication of its appeal and that the Assessee s appeal may be dismissed as not pressed. The request is accepted and the appeal of the Assessee is dismissed as not pressed. 3. As far as the appeal of the revenue is concerned, the facts are that the Assessee is a partnership firm engaged in the business of import of polypropylene and sells them when the imported goods are in the course of import and while they are in high sea. For AY 96-97, the Assessee filed a return of income on 29.11.1996 declaring total income of ₹ 21,889/-. An order of assessment was passed u/s.143(3) of the Act on the said return of income on 30.3.1999. The total i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is further stated in the said letter that the AO was in receipt of such documents and on perusal he was of the view that the Assessee herein had imported consignments of polyprophylene Grade H-4500 HDPE worth several lakhs of rupees against bills of entry with specific numbers. It has also been stated in the said letter that the DRI had issued show-cause notice on account of evasion of duty on imports and all these imports prima facie are found not disclosed for income tax purposes in relevant AY. Hence the AO entertained belief that income chargeable to tax has escaped assessment exceeding ₹ 1 lac. 5. The Assessee vide letter dated 27.11.2003 of its counsel pointed out that it was filing return of income in response to the notice dated 28.3.2003 under protest and that the initiation of reassessment proceedings is barred by time as laid down in the proviso to sec.147 of the Act. In the return of income filed the Assessee declared total income of ₹ 21,889/- which is the same total income declared in the return originally filed on 29.11.1996. The AO passed an order of assessment u/s.147 read with Sec.143(3) of the Act dated 31.3.2004. In the said order the AO has ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment in the present case was sought to be re-opened, after expiry of 4 years from the end of the relevant assessment year and an order of assessment u/s 143(3) has already been passed. It was therefore, submitted by him that the proceedings u/s 147 of the Act are barred by time. In this regard, it was also argued even in the reasons recorded there is no reference to the failure on the part of the assessee to fully and truly disclose the material facts. Reliance was placed on the decision of the Hon ble Bombay High Court in the case of Hindustan lever Ltd. Vs. ACIT 268 ITR 332 (Bom) wherein on identical facts initiation of reassessment proceedings were held to be invalid. It was submitted that on identical facts, initiation of reassessment proceedings u/s.147 of the Act in the case of another sister concern of the Assessee viz., Ashwani Kumar More in ITA No.953/Kol/2005 order dated 15.7.2006, was held to be bad in law and the order of the Tribunal has also been upheld by the Hon ble Calcutta High Court. It was pointed out that the ITAT in coming to the aforesaid conclusion had placed reliance on the decision of the Hon ble Supreme Court in the case of Coca cola Export Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/-. 2. For that the A.O has started proceedings of 147 is based on materials in record. The material is under examination with CEGAT. The amount involve in this case not less that ₹ 1,05,79,669/- and the information has not been proved incorrect. The addition on the part of Custom Duty Evasion resulting in evasion of Income Tax as the assessee has not shown the sales in regular books of account so it can be termed as suppressed sales, which the A.O. has rightly observed in his order u/s 147/143(3). 3. The department craves leave to put additional ground/grounds and/or to alter/amen d/modify the present grounds. 9. We have heard the submissions of the learned DR who submitted that the information received from the Customs Authorities was a valid basis to form opinion regarding escapement of income and for initiation of reassessment proceeding. The learned AR relied on the order of CIT(A) and contentions put forth before the CIT(A). 10. We have given a very careful consideration to the rival submissions. On identical facts proceedings for reassessment were initiated in the case of Shri Ashwani Kumar More for AY 1996-97. Ashwani Kumar More is a business A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to sec.147 of the Act and therefore, initiation of re-assessment proceedings is held to be bad. 12. In this regard we find that the decision of the Hon ble Bombay High Court in the case of Hindusthan Lever Ltd. (supra) supports the plea of the Assessee. In the said decision the Hon ble Bombay High Court, on identical facts as in the case of the present Assessee before us, held as follows: Where an assessment under sub-s. (3) of s. 143 has been made for relevant assessment year, no action can be taken under s. 147 after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reasons of the failure on the part of the assessee to disclose all material facts necessary for his assessment for that assessment year. The reasons recorded by the AO nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the AO. No substitution or deletion is permissible. No additions can be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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