9911796707
TMI Blog2002 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... incumbent for the year 1958-59 under section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act of 1961") is valid. The brief facts which are necessary for disposal of this appeal are that a notice was issued on March 25, 1975 under section 148 of the Income-tax Act, 1961 for reopening the assessment for the year 1958-59. The previous reopening order was set aside by the Tribunal. It is alleged that, sanction of the Central Board of Direct Taxes (CBDT) was obtained on March 22, 1975, for this second reopening notice. The previous reopening of the assessment was done on the basis that there were hundi loan credits in the names of various parties who were known as name lenders. In the original assessment, loan credits from these parties were accepted without investigation. But subsequently, it was found that some of the hundiwalas whose names appeared in the list of creditors of the assessee made confessional statements before the Department that they were mere name lenders. Therefore, it was found that the hundi loans figuring in the books of account of the assessee were not genuine and the loan amount was nothing but the assessee's own undisclosed income. The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confessional statement of Giridharisingh Jhamansingh and found that the reopening to be justified, but there appears to be a little typographical mistake that it is not Giridharisingh Jhamansingh but it is Jethanand Madhavdas who has given a confessional statement in 1968 that impelled the authorities to re-open the assessment in 1975. However, the learned single judge referred to the statement of Giridharisingh Jhamansingh whereas it should have been the statement of Jethanand Madhavdas wherein it was categorically stated that Jethanand Madhavdas was only a name lender and he did not advance any hundi loans. The learned single judge found the reopening to be valid and dismissed the writ petition. Aggrieved against this order the present appeal has been filed by the assessee challenging the order of the learned single judge on two grounds; firstly, that once the earlier reopening of the assessment having been set aside by the Appellate Assistant Commissioner and affirmed by the Tribunal this second reopening could not have been opened by the Department; secondly, that there is no material whatsoever to reopen the assessment. We have heard learned counsel for the parties and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, all the materials pertaining to this reopening of the assessment for the year 1958-59 was placed before the Central Board of Direct Taxes and the Central Board of Direct Taxes after due application of mind felt satisfied and granted sanction for reopening of the assessment for the year 1958-59. It is true that other confessional statements with regard to this entry of Kanyalal Hotchand or Giridharisingh Jhamansingh does not pertain to the assessment year 1958-59, therefore, the Tribunal was right in its approach but in 1968 when the confessional statement of Jethanand Madhavdas was available that provided sufficient material for reopening of the matter. Therefore, the confessional statement of Jethanand Madhavdas provided sufficient material to the authorities for reopening the assessment and that has been considered by the Central Board of Direct Taxes and sanction was accorded. Thus, it cannot be said that the Central Board of Direct Taxes has not applied its mind to the materials placed before it. The sending of the matter to the Board necessitated because the period for reopening by the Commissioner of already expired as such sanction of the Central Board of Direct Taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been escapement of the income of the assessee from the assessment in a particular year because of his failure to disclose fully and truly all material facts. This yardstick has been amply complied with in the present case as the confessional statement of Jethanand Madhavdas provided sufficient material to show that he was only a name lender and he did not advance any loan to the assessee. Dr. Pal also submitted that once the Tribunal has found that reopening of the assessment for the year 1958-59 was bad and that having not been challenged then in that case reopening cannot be made as the matter stood concluded with the finding of the Tribunal. In that connection he has invited our attention to a decision of the apex court in the case of CIT v. Rao Thakur Narayan Singh [1965] 56 ITR 234; AIR 1965 SC 421, wherein it was observed that a mistake was committed in the order in appeal by the Appellate Tribunal and that mistake was not rectified by the Income-tax Department by pursuing proper remedy. It was held by the apex court that the Department cannot initiate proceedings again under section 34 on the self same subject-matter. This case does not provide any useful assistance i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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