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TMI Blog2019 (5) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... as picked up for scrutiny and a questionnaire dated 23rd October, 2012 was issued by the AO to the Petitioner inquiring about various aspects. Along with its reply dated 30th October, 2012 the Petitioner submitted all the relevant bank statements. A further reply was submitted on 6th November, 2012 stating that copies of the Audit Report, Balance Sheet, Profit and Loss Account (P & L Account) along with Schedule had already been placed on record. Details of an unsecured loan of Rs. 40 crores obtained by the Petitioner from PACL India Limited ('PACL') were also reflected in the accounts. 3. Another questionnaire was issued by the AO on 27th November, 2012 raising specific questions as regards PACL. The Petitioner submitted its reply on 25th January, 2013 furnishing details of the unsecured loan with confirmation of accounts. According to the Petitioner it informed the AO that it had a plan to undertake a joint venture with PACL for development of an IT park but the project did not materialize. Therefore, in the subsequent AY, the said amount was refunded to PACL. The statement of Petitioner's account with Axis bank for the AY in question was already on record. The bank statement fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-opening of the aforementioned assessment for AY 2011-2012 was issued by the AO. By a reply dated 23rd April, 2018 the Petitioner stated that its original return may be treated as the return filed pursuant to the above notice. The Petitioner also requested for copy of the reasons recorded. On 5th September, 2018 the AO supplied to the Petitioner a copy of the reasons recorded. Reasons for re-opening 6. In Para 2.1 of the reasons, it was stated that during the course of assessment proceedings of a sister concern of the Petitioner i.e. Best International Projects Private Limited (BIPPL) for AY 2012-2013, it was noticed that a sum of Rs. 40 crores had been transferred from the account of PACL with Axis Bank to the account of the Assessee. It was observed that PACL "is well known for giving and taking accommodating entries". 7. Para 3 of the reasons contained the analysis of the above information. According to the AO, the creditworthiness and genuineness of the above transaction remained unproved in the case of the Assessee in light of the financial position reflected in the returns and nature of the debit and credit entries reflected in the Bank account statements "in which tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that there was total non-application of mind by the AO while re-opening the assessment. In the first place, the proforma filled up by the AO for seeking approval of the superior officer for the re-opening of the assessment indicated that the earlier assessment was under Section 143(1) of the Act whereas it was under Section 143(3) of the Act. According to Mr. Kapoor, this led to neither the AO nor the Superior Officer examining the file and noting that detailed questionnaires had already been issued by the AO for which replies have been given by the Assessee disclosing the complete particulars regarding the loan of Rs. 40 crores of the PACL. Mr. Kapoor emphasized that this was not a case of failure by the Assessee to disclose the complete relevant materials and information relevant to the assessment. According to Mr. Kapoor the jurisdictional requirement in law for assumption of jurisdiction under Section 147 of the Act, keeping in view that the original assessment was under Section 143(3) of the Act, and the reopening was sought to be done four years after the earlier assessment, were not fulfilled in the present case. 13. Mr. Kapoor placed reliance on the decisions of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s failure to file a return under Section 139, or in response to a notice under Sections 142(1) or 148 of the Act or failing to disclose fully and truly all material facts necessary for the assessment. (d) The reasons for re-opening the assessment must themselves contain all of the above elements. In other words the factum of the existence of tangible material and the recording of the satisfaction of the AO about the failure by the Assessee to disclose fully and truly all material facts necessary for the assessment must find place in the reasons recorded for re-opening the assessment. The deficiency in this regard cannot be sought to be made up by a counter affidavit filed in the Court in response to a petition questioning the reopening of the assessment. 17. In Sabh Infrastructure v. ACIT (supra) after referring to the decisions in Oracle India Pvt. Ltd. v. ACIT 2017 SCC online Del 9360 and BDR Builders and Developers Pvt. Ltd. v. ACIT 2017 SCC Online Del 9425 this Court held "Thus, it is also now well settled that the reasons to believe have to be self explanatory. The reasons cannot be thereafter supported by any extraneous material. The order disposing of the objections can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at debit balance is zero as on 31st March, 2012 was also furnished. The complete statement of bank account of Axis bank reflecting the debits and credits in the account including money received from PACL and repaid to it were furnished. It is therefore plain that all details pertaining to the amount received from PACL was in fact furnished by the Assessee to the AO. 21. While, in the present case the assessment order does not itself discuss the details furnished by the Assessee, the fact remains that all the relevant materials were indeed disclosed by the Assessee before the AO. Also, the details of how the sum of Rs. 40 crores was disbursed appears to have been disclosed by the Assessee in a letter dated 2nd February, 2013 written by it to the AO in response to the questionnaire issued to it on 27th November, 2012. Relevant portions of the said letter read as under: "Sir, With reference to the subject captioned above, the Assessee seeks to submit as follows in response to the questionnaires issued u/s 142(1): Reply to Point No. 6 With regard to the query in relation to Rs. 40Cr received by the Assessee Company, it is stated that the Assessee Company has received Rs. 40 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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