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TMI Blog2017 (6) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the hearing of this appeal. 2. When the appeal was called for hearing, neither the assessee nor his Authorized Representative appeared nor any application for adjournment or any written submission was placed before the bench. On perusal of the record, we find that the appeal is pending since 2010 and despite several opportunities given to the assessee including notice through Income Tax Department, the assessee is not appearing himself or through his counsel. Therefore, the appeal is pending for adjudication since long for want of prosecution. In view of the above, we are of considered view that issue of further notice or adjourning the appeal would not be just and proper and these appeals may be disposed of on the basis of record after hearing the Ld. DR, appearing on behalf of the Revenue. We, therefore, proceeded to hear and adjudicate the appeal accordingly. 3. The facts in brief of the case are that the assessee filed return of income originally on 28/03/2002 declaring income of Rs. 13,20,000/-, which included agriculture income of Rs. 1,40,000/-. The return was processed under section 143(1) of the Income-tax Act, 1961 (in short 'the Act'). Subsequently, notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding, the assessee submitted that it had purchased Rs. 8,32,500 shares from the market through a stockbroker for Rs. 12.48 Lacs. The Assessing Officer asked the assessee details of purchase alongwith documentary evidence in respect of 8,32,500 shares purchased for Rs. 12.48 Lacs, however, no details were supplied by the assessee. The Assessing Officer was of view that value of the shares should be at Rs. 10 per share and, therefore, the investment in the 8,32,500/- shares should have been worth Rs. 83,25,000 and thus assessee has made an undisclosed investment to the extent of Rs. (83,25,000 - 12,48,000) = Rs. 70,77,000/-, which he assessed as deemed income under section 69B of the Act. 3.3 Before the Ld. CIT-A, the assessee challenged the validity of the reassessment proceedings as well as merit of the addition. The Ld. CITA annulled the reassessment proceeding as well as deleted the addition on merit. Aggrieved, the Revenue is in appeal raising the grounds as reproduced above. 4. In ground No. 1, the Revenue challenged quashing of reassessment proceeding . 4.1 Before us, the Ld. Senior DR supporting the grounds submitted that the Assessing Officer was justified in reopenin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment, there does not appear to be valid reason for re-opening the assessment u/s 148 on a second occasion on similar grounds. b) The AR has also strongly argued on the basis of various judicial pronouncements that since the assessee had discloses fully and truly all material facts necessary for assessment and the Assessing Officer has not brought out any discrepancy for invoking the provisions u/s 148, this action of the Assessing Officer does not appear to be justified. The Authorized Representative has strongly argued that even the procedure followed for reopening of the assessment has not been followed properly and on inspection it has been found that proper reasons had not been recorded and adequate mind has not been applied before re-opening of the assessment. The AR has relied upon the decision of United Electricals Co.(P) Ltd. (Del) (supra). c) The AR has further argued that the assessee had raised beyond the objections to the reasons recorded by the Assessing Officer, but these objections have not been disposed of by the Assessing Officer before proceedings with the action u/s 147/148 of the Income Tax Act. In this regard the AR has relied upon the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: 4.4 Thus, it is evident that wherever assessment/reassessment has been completed under section 143(3) of the Act or under section 147 of the Act and four years have already elapsed from the end of the relevant assessment year, subsequent notice under section 148 of the Act for reassessment cannot be issued unless there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. In the case of Rakesh Agarwal (supra), the notice under section 148, was issued within four years from the end of the relevant assessment year and therefore facts of the said case are distinguishable. 4.5 In the instant case, the Assessing Officer has not pointed out how the assessee failed to disclose fully and truly all material facts related to the assessment. In fact, the assessee only submitted details of investment in 8,32, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion and the order had been finalized u/s 143(3)/147 of the Income Tax Act. It is observed that no new facts were available before the Assessing Officer and there was no material on the basis of which it could be concluded that a higher amount of investment made by the appellant for acquiring these shares. Also considering the various judicial pronouncements of CIT Vs. K.P. Verghese, 131 ITR (SC) & Ors., including the decision of ITAT Delhi Bench in the case of K.J. Arora Vs. DCIT, in ITA No. 4126/4127 & Ors., it has been held that different in the case of investment in property only on the basis of estimation, cannot be a valid ground for sustaining the addition. Grounds have also held that the burden of prove that there is unexplained investment lies on the revenue. b) In the present set of facts the Assessing Officer has made the addition of ignoring earlier findings of the Assessing Officer who had examined the books of accounts and made necessary enquiries before accepting the contentions of the appellant. The addition has been made by the Assessing Officer only on grounds that no written confirmation was provided from the purchasing party that the shares had only been sol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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