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TMI Blog2019 (3) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... closure by the assessee as the very material fact that the impugned transaction/s related to accommodation entries was not disclosed by the assessee. Accordingly, we uphold the validity of the re-assessment proceedings - Decided against assessee. - ITA No.-3853/Del/2015 - - - Dated:- 27-2-2019 - SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI O.P.KANT, ACCOUNTANT MEMBER For The Assessee : Sh. Sunjay Kumar, FCA For The Revenue : Shri Rinku Singh, Sr. DR ORDER PER SUDHANSHU SRIVASTAVA, J.M.: This is an appeal filed by the assessee against order dated 06.01.2015 passed by the Ld. CIT (Appeals)-XXX, New Delhi for assessment year 2004-05. 2. At the outset, the Ld. Authorised Representative submitted that there was a delay of 13 days in filing this appeal. Our attention was drawn to the delay-condonation application submitted in this respect wherein it has been pleaded that the delay occurred on account of appeal papers having been kept in the wrong file. An affidavit has also been filed by the assessee in this regard. It was prayed that the delay was unintentional and that there was no negligence on the part of the assessee in filing the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvey proceedings that he used to provide accommodation entries to various perons/beneficiaries. It was also stated in the reasons that as per the information received from the ACIT, Central Circle -19, New Delhi, the assessee was the recipient of ₹ 20 lakhs through three different cheques from M/s Chanderprabhu Financial Services and M/s Chanderprabhu Finance Securities Ltd which were companies floated/controlled by Shri SK Gupta. The assessee objected to the validity of initiation of proceedings u/s 147 of the Act and the objections were disposed of by the AO on 12.09.2011. On 01.11.2011, the assessee requested for inspection of assessment records and also requested for being provided with the copies of the relevant documents which were provided to the assessee though inspection of file was not allowed. On 13.12.2011, the assessee demanded an opportunity to cross examine Mr. S.K. Gupta on whose statement the reopening was said to be based. The assessment was completed u/s 143(3) / 153(A) / 147 of the Act on 29.11.2011 at an income of ₹ 4,51,76,290/- after making a further addition of 20 lakhs to the income determined earlier vide assessment order u/s 153A/143(3) date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also submitted that the assessee had specifically asked for cross examination of Sh. S.K. Gupta which was not afforded and, thus, the reassessment based on such statement was bad in law. Reliance was placed on the judgment of the Hon ble Apex Court in the case of M/s. Andaman Timber Industries in Civil Appeal no. 4228 of 2006 and it was submitted that in absence of opportunity of cross-examination being provided to the assessee, the impugned addition could not have been made. The Ld. Authorised Representative also argued at length and contended that the reassessment in this case was beyond 4 years and, therefore, in absence of any fresh material having come in possession of the Assessing Officer, the reassessment proceedings were bad in law. The Ld. Authorised Representative also argued that the impugned addition was wrongly made and further confirmed as the assessee was not confronted with any contrary evidence or incriminating material prior to making the addition. It was also submitted that the impugned transaction pertaining to share capital already stood verified and assessed twice and, therefore, no addition can be made on this account as there was no failure on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borative evidences in this regard. During the survey operation under Section 133A of the Act at the premises of Shri SK Gupta, a laptop was found the content of which was made Annexure A-14. The said laptop contained ledger accounts from F.Y. 2003-04 to 2007-08. At pages 739, 875-876 of the ledger for F.Y. 2003-04 there was an account namely Loan July 03 to July 04 Premium in the name of one Mr. Suresh Garg. Scanned Copy of these pages have also been reproduced in the assessment order in Para 2.3.3. As per the noting in the said Premium account, these is an entry of premium (Commission) received from Mr. Suresh Garg on account of cheque no. 778923 Dt. 30.8.2003 drawn on Federal Bank from Chander Prabhu in favour of the assessee for ₹ 15,000/-. Similarly, the ledger of Mr. Suresh Garg showed that on 28.9.2003 and 29.9.2003, cash of ₹ 10 lacs was received and cheque was given to M/s Gahoi Buildwell Pvt. Ltd. through Chander Prabhu Financial Services Ltd. for ₹ 10 lacs (two cheques of ₹ 5 lacs each.). It is also not the case of the assessee that the assessee was not confronted with the documents/entries as found in the lap top found in the premises of Shri SK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Gujarat High Court, on assessee s appeal, held that the assumption of jurisdiction on the part of the AO was based on fresh information and upheld the validity of the re-assessment proceedings. The Hon ble Apex Court subsequently dismissed the assessee s Special Leave Petition. In the present case also, the re-opening was based on information collected during the course of survey at the premises of a third party and this, in our considered opinion, constitutes fresh information. Therefore, we reject the contention of the assessee that the information from the investigation wing could not be treated as fresh material for the purpose of initiating re-assessment proceedings. 9.2 The Ld. AR had also argued that the assessee was not confronted with any incriminating material or contrary evidence with respect to the impugned addition. In this regard, we have perused the assessment order and we note that the entire evidence has been reproduced in the assessment order and it has been stated by the AO that the same was given by way of show cause to the assessee for rebuttal. The AO has also mentioned that the assessee chose not to offer its comments on the same. Therefore, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that the AO has not formed an opinion would be contrary and opposed to normal human conduct; X X X 15. Here we must draw a distinction between erroneous application/ interpretation/understanding of law and cases where fresh or new factual information comes to the knowledge of the Assessing Officer subsequent to the passing of the assessment order. If new facts, material or information comes to the knowledge of the Assessing Officer, which was not on record and available at the time of the assessment order, the principle of change of opinion will not apply. The reason is that opinion is formed on facts. 9.4 Therefore, opinion formed or based on wrong and incorrect facts or which are belied and untrue do not get protection and cover under the principle of change of opinion . Factual information or material which was incorrect or was not available with the Assessing Officer at the time of original assessment would justify initiation of reassessment proceedings. The requirement in such cases is that the information or material available should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income than the one actually made. They should be proximate and not have any remote bearing on the assessment. Omission to disclose may be deliberate or inadvertent. This is not relevant, provided there is omission or failure on the part of the assessee. The latter confers jurisdiction to reopen the assessment. 9.6 In the light of the aforesaid, it has to be held that the requirement of full and true disclosure by the assessee is not satisfied in the present case. The Hon ble Delhi High Court has observed in the case of M/s OPG Metals Finsec Ltd. vs. Commissioner of Income Tax Anr. In Writ Petition (Civil) No. 8283/2010 that full and true disclosure cannot be garbed or hidden behind the cervices of the documentary material. The assessee must act with candour and there cannot be suppression of facts. The disclosure must be truthful and fair in all respects and assessee who seeks the benefit of the proviso to Section 147 must make a full and true disclosure of all primary facts. 9.7 In view of the above stated judicial precedents and on the specific facts of this case, we are unable to find ourselves in agreement with the averments of the Ld. AR. We also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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