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TMI Blog2019 (9) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... that the relevant account having been furnished on being called for during the original proceedings, the same can only be regarded as having been examined thereat by the assessing authority, who though chose not to make any disallowance u/s. 40A(3). Reference to the said account in the instant proceedings, thus, amounts to a review, a change of opinion, impermissible in law. The argument, valid in principle, would however require the assessee to show that it was show caused qua the impugned disallowance (u/s. 40A(3)), or otherwise queried in its respect, in the original proceedings. And which has not been at any stage. The Revenue has thus not been able to show the assessee s failure to disclose the relevant facts, only which would qualify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gregating to ₹ 2,36,755/-, made in contravention of sec. 40A(3), which had been omitted to be disallowed while framing the original assessment u/s. 143(3). The assessee failing to prove that the cash payments to the truck drivers had in fact been made in sums of ₹ 19,000/- each over several days, as claimed, the Assessing Officer (AO) effected the disallowance thereof. The assessee challenged the same on several grounds, including the validity of the notice u/s. 148(1) dated 10.12.2015 and, thus, of the reassessment proceedings, on the ground that the said notice, issued after four years from the end of the relevant assessment year, could not have been in law issued as there was no failure on the part of the assessee to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is, inter alia, a failure on the part of the assessee to disclose fully and truly all material facts necessary for the computation of his income for the relevant year (refer first proviso to s. 147). Now, to begin with, there is no allegation in its' respect either in the reasons recorded or even in the ensuing assessment order. In fact, even where made, it would not hold as the 'statement of coal freight account' relied upon by the AO in forming his reason to believe an escapement of income from assessment on account of non-disallowance of freight expenditure ostensibly inadmissible u/s. 40A(3), stands furnished during the course of the original assessment proceedings. That is, the very same ledger account, on the basis of which the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion, impermissible in law. The argument, valid in principle, would however require the assessee to show that it was show caused qua the impugned disallowance (u/s. 40A(3)), or otherwise queried in its respect, in the original proceedings. And which has not been at any stage. The Revenue has thus not been able to show the assessee's failure to disclose the relevant facts, only which would qualify its' action for reopening as valid in law, with, on the contrary, the assessee exhibiting otherwise. Though, strictly speaking, the ld. CIT(A) failing to address this specific issue raised before her per Gds. 2 & 3, the matter should travel back to her file for adjudication, it is not considered either necessary or advisable in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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