9911796707
TMI Blog2018 (5) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... were made available to the AO, during original assessment proceedings. As the Tax Audit Report was available to the AO during assessment proceedings, so, the observation made, that the assessee had not filed necessary details, is factually incorrect. Considering the above, we are of the opinion that no new tangible material was relied upon by the AO for issuing notice u/s. 148 of the Act. In other words, same material was used to initiate the reassessment proceedings. Thus, it is a case of mere change of opinion. Also section 43B(f) would apply only to those cases where an employer would be any amount to an employee out of leave salary standing to credit of employees. In the case under consideration provision was made on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the available material, he held that the assessee had relied upon the case of Cargo Clearing Agency(307ITR1)of the honorable Gujarat High Court in its support, that the judgment pertain to the assessments made under Chapter XIV B of the Act under the scheme of blog assessment, that the assessments made u/s. 153 A were different from the block assessments, that submission made by it in that regard was not acceptable, that the amount of provision for leave encashment was made during the AY. 2008-09, that the disputed amount was added back in the AY. 2012-13, that the argument of the assessee of non-escapement of income was not acceptable, there was no new tangible material before the AO for issuing a notice u/s. 148. He referred to the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. With regard to the application filed by the assessee under rule 27 of the ITAT Rules, 1963 (Rules), the AR argued that there was no escapement of income, as held by the FAA. Alternatively, he argued that the assessee should be allowed relief in subsequent AY. , wherein the assessee had disallowed the disputed amount suo-motu, that the original assessment was completed u/s. 153A of the Act, that re-opening was result of change of opinion. 4. We have heard the rival submissions. We find that original assessment was completed as per the provisions of section 153Aof the Act, that the AO had issued a notice u/s. 148 of the Act , stating that taxable income had escaped assessment. Before proceeding further we would like to reproduce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for initiating the reassessment proceedings. Now, if fact of filing of Tax Audit Report i see s taken into consideration(Pg. 134 of the PB), it becomes clear that necessary details were made available to the AO, during original assessment proceedings. In its letter, dated 16/10/2009, filed in response to the questionnaire issued by the AO on 15/10/ 2008, the assessee had mentioned as under: With reference to the above, we submit . . 3. Details of expenses debited under the head Profit and Loss account are produced for verification i. e. groupings as Annexure 2. 4. Copy of Return of Income filed, Audited Accounts, Tax Audit Report and required annexures are enclosed as Annexure 3A. As the Tax Audit Report was avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os - ing fully and truly all the necessary facts that led to escapement of income. We would also like to mention that section 43B(f) would apply only to those cases where an employer would be any amount to an employee out of leave salary standing to credit of employees. In the case under consideration provision was made on the basis of actuarial valuation. Therefore, the provision for leave encashment would not fall under the preview of clause(f)to section 43 B of the Act. 4. 1. Here, we would also like to refer to the case of Calcutta Chromotype Ltd. (supra). In that matter the AO had issued a notice to the assessee u/s. 148 of the Act on the ground that the profits on sale of machineries were not disclosed by the assessee. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: . . the learned trial judge rightly negatived the contention on behalf of the revenue based on the Explanation to section 147 of the Act that production before the Income-tax Officer of account books and other evidence from which material evidence could with the diligence have been discovered by the officer will not necessarily amount to disclosure within the meaning of section 147. As held by the learned judge, Explanation 2 to section 147 was confined to cases of books of account and other evidence which are produced in the course of assessment proceedings; but the balance-sheet had to be filed along with the return by virtue of the provisions of rule 19 framed under the Indian Income-tax Act, 1922, and that makes the bala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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