9911796707
TMI Blog2017 (1) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... ons recorded are read as a whole, it does not indicate that there has been a failure on the part of the petitioner to disclose fully and truly all facts necessary for assessment. Nor does it state that there has been any misrepresentation on the part of the petitioner. It is on reexamination of the seized diaries(A1 to A6) alone, without any fresh material which points to the falsity of the diaries(A1 to A6). Therefore when we examine the reasons recorded, without the aid of the affidavit in reply dated 12 March 1988 of the Commissioner of Income Tax, it clearly indicates a change of opinion on the same set of facts. Thus it is a clear case of the Assessing officer seeking to review his decision taken during the earlier assessment/ reopening assessment and not a case of reassessment. In the present facts, it is not the case of the Revenue that any material evidence which was a part of the seized six diaries (A1 to A6),was not brought to the notice of the Assessing Officer, and it does not mention which material relied upon by the Petitioner during the assessment proceedings, had led the Assessing Officer to conclude that the Petitioner is only a finance broker and not a finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1995 passed under Section 148 read with Section 143(3) of the Act, determined the Petitioner's income at ₹ 4.65lakhs for the Assessment Years 1989-90 and ₹ 11.89 lakhs for the Assessment Year 1990-91. This was by relying upon entries in six diaries (A1 to A6) which were seized by the department during the course of the search. So far as the Assessment Year 1991-92 is concerned, the Assessing Officer completed the Assessment on 31st March, 1994 by an order passed under Section 143(3) of the Act again amongst other things by placing reliance upon the six diaries (A1 to A6) seized during the search proceedings in the year 1990-91. 6. Thereafter, the Assessing Officer issued the impugned notices on 23rd September, 1997 to the Petitioner, seeking to re-open the assessment for the Assessment Years 1989-90, 1990-91 and 1991-92. The reasons recorded in support of the impugned notices by the Assessing Officer for all the three years are, identical, according to counsel for both sides. Therefore, for the sake of convenience, the reasons recorded for the Assessment Year 1991-92 are reproduced as under:- SHRI AMAR NAGPAL A.Y. 1991-92 REASON FOR REOPENING UNDER SECTION 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andru & Mahink for Asha Nagar (Also in A/1 diary on 8.5.90) ,, 3,00,000 Manghira Bhayander 9.5.90 3,49,000 Chandru Crystal (Also in A/1 diary) 11.5.90 55,000 Navani flat account 22.5.90 50,000 Chandru flat deposi for Asha Nagar (Also in A/1 diary on 23.5.1990) 24.5.90 1,08,800 - do - (Also A/1 diary) 24.5.90 2,00,000 Dr. Sri Project A/c ,, 1,64,000 Mahink Asha Nagar (A-1 diary entry on 28.5.90 for flat 302) 1.6.90 1,65,000 c/o. Mad Kukereja flat no.1901 Rate 950 area 1005 (also entry in A/1 dated 3.6.90 as Madkukreja Kandivli) ,, 1,50,000 Received from Divya D. Jaisingh flat A/c A/1 3.6.90 9.6.90 1,50,000 Divya flat Dilip 13.6.90 12,500 D.H.Murd a/c (Also A-1 Bunglow) 16.6.90 60,000 Received from Chandru flat a/c crystal (A-1 diary 19.6.90) 22.6.90 4,200 Received from Chokshi Mudh a/c ,, 55,000 Received Khysh Bunglow Thane a/c (A-1 23.6.90) 25.6.90 50,000 Received Khys Thana Bunglow a/c (A-1 25.6.90 Rutu Enclave) 29.6.90 4,00,000 Received Purs Tulsa flat a/c (A-1) ,, 50,000 Chandu Sri Project flat (A-1 diary 28.6.90 Crystal Kandvli) 5.7.90 2,00,000 Received Divya Shah flat a/c Dep a/c (A-1 on 6.7.90) 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.7.90 3,00,000 P. Tulsi Zali Con 1,16,78,515 Total receipts for properties ₹ 1,16,78,515/-. The profit on these sales is estimated @ 15% at ₹ 17,51,777/- . The assessee has not shown this profit and hence it has escaped assessment. C. The assessee has invested the following amounts in immovable properties as noted in diary A-1 as under:- Date Amount Description 3.4.90 4,00,000 Sri Project monis Vijay area 350 x 1500 = 5,25,000 5.4.90 3,01,000 Khysh Pratap flat 825 - 575 6.4.90 3,00,000 Sri Project Kirit Nalasopara 325 x 60% 14.4.90 1,00,000 Navani cheque to D.R. Puri Farm Karjat 18.4.90 2,34,000 R.Vasu 24.4.90 20,000 Murari, Blossom Enpys cheque 25.4.90 25,000 Murari Murud A/c ,, 2,000 Murari Blossom A/c 26.4.90 7,00,000 Jaikap against Kandivli Crystal 7.5.90 10,000 Divya Shah Nana Chowk ,, 40,00,000 Nitiraj Property against flat 2450 sq.ft Raj Prashar 10.5.90 13,00,000 Navani Tirupati Plaza Shop 3600 (A - 6 diary Page 65) (11.5.90) 18.5.90 2,50,000 Atlanta Construction Co - Dolly Nagpal 3.6.90 2,00,000 Kishor Jaising Flat A/c 11.6.90 1,50,000 Kishore Jaising Flat Divya A/c 30.6.90 60,00,000 Sri Project Nala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000 + 5000 + 4,35,000) ₹ 5,00,000/- is the income of the assessee u/s. 69/69A/69B which has escaped assessment. F. The assessee vide letter dt . 5.2.94 has admitted that cash amount of ₹ 31 lacs deposited in the bank are unaccounted and covered by declaration u/s.132(4). This amount has escaped assessment. Thus consideration A,B,C,D,E & F above, the following income has escaped assessment within sub-clause (i) of clause (c) of explanation 2 of Sec. 147. Para A for estate brokerage received ₹ 11,60,500 Para B for profit in property dealings ₹ 17,51,777 Para C for unexplained investment in Properties Rs.1,40,98,985 Para D for unexplained finances made Rs.3,29,85,000 Para E for club membership, Toyota booking and bearer bonds ₹ 5,00,000 Para F for unaccounted cash deposit in Bank ₹ 31,00,000 Rs.5,35,95,762 7. The impugned notices dated 23 September 1997 were challenged in this Court by filing this petition on the ground that the same are without jurisdiction and therefore bad in law. 8. The Respondent-Revenue, has opposed this petition by filing an affidavit in reply dated 12th March, 1988 of one Mr. K. K. Deb Burman, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull and true disclosure of all material facts necessary for assessments. It is submitted that it was the obligation of the petitioner to invite the attention of the Assessing Officer to specific material evidence in the seized dairies. In support attention is invited to Explanation II to Section 147 of the Act and the decision of this Court in Zohar Siraj Lokhandwala v/s. M. G. Kamat & Others 210 ITR 956. Further, reliance is placed upon the decision of the Calcutta High Court in CIT v/s. M/s. Eureka Stock & Share Broking Services Ltd., 74 Taxmann.com 114 to contend that where an assessee has misrepresented facts which led the Assessing Officer to take a view divorced from the actual facts, then it is open to the Assessing Officer to issue a re-opening notice as done in the present facts. Thus it was submitted that the petition should be dismissed and the petitioner would have more than sufficient opportunity to explain the facts before the authorities under the Act in the reassessment proceedings. 11. It is a settled position in law that a re-opening of assessment has to be done only by the Assessing Officer based on his reasonable belief that income chargeable to tax has escaped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points to the falsity of the diaries(A-1 to A-6). Therefore when we examine the reasons recorded, without the aid of the affidavit in reply dated 12 March 1988 of the Commissioner of Income Tax, it clearly indicates a change of opinion on the same set of facts. Thus it is a clear case of the Assessing officer seeking to review his decision taken during the earlier assessment/ re-opening assessment and not a case of reassessment. 13. The reliance placed by Mr. Mohanty upon the decision of this Court in Zohar Siraj Lokhandwala (supra), is misplaced in the facts of this case. In that case, Petitioner had filed a trust deed during the assessment proceedings and claimed that there was no cost of acquisition for the purpose of determining capital gain tax. However, the trust deed itself contains a indication that the acquisition of the property which was transferred, was for a consideration of ₹ 300/-. The Assessing Officer sought to re-open and complete its assessment by placing reliance upon the trust deed and in, particular, the cost of acquisition of the property which was subjected to capital gains being recorded therein for the purpose of re-opening assessment. In that case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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