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TMI Blog2019 (12) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... were examined by the AO. All the material was placed before the Assessing Officer by the Petitioner. Acting upon this material, the Assessing Officer had, in fact, made certain additions. Therefore, it cannot be said that there was a failure by the Petitioner to disclose all material facts fully and truly. In the circumstances, the jurisdictional requirement to reopen the assessment proceeding after four years is not present. Neither it has been alleged. In the reasons supplied along with first reopening notice, the issue of bogus accommodation of entries regarding purchases was discussed. The reasons given for second reopening notice reproduced above also refer to the said fact. The reasons also refer to a decision of the Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012-13 on 20 September 2012 declaring total income of ₹ 29,76,330/-. The Respondent No.1- Assessing Officer sought details from the Petitioner regarding purchases, sundry creditors and sundry debtors and a notice to that effect under section 142(1) of the Income Tax Act, 1961 was issued on 31 July 2014. The Petitioner replied to the said notice on 19 August 2014 and submitted details as sought for. An assessment order was passed by the Assessing Officer on 19 February 2015 under section 143(3) of the Act without making any disallowances of the purchases. 3. The Petitioner received a notice from the Assessing Officer dated 29 September 2012, seeking to reopen the assessment for the assessment year 2012-13. The reasons supplied along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 147 of the IT Act 1961 for A.Y. 2012-13 and notice u/s. 148 of the I.T. Act needs to be issued. After considering the response of the Petitioner, the Assessing Officer concluded that the purchases were made, however, they were made at a lower cost from the grey market and disallowed certain purchases as bogus purchases. 4. On 28 March 2019, the Respondent No.1- Assessing Officer issued the impugned notice under section 148 of the Act. Reasons for issuing the notice were supplied to the Petitioner, which are reproduced as under: The assessee is engaged in the business of Manufacturing Industry, trading and exporting of rough diamonds and diamond powder. Assessee had filed its return on 20/09/2012 for A.Y. 2012-13 declaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have given their statements on oath, that only bills and no actual transaction had taken place between them and the assessee company. In this connection, it is pertinent to note that the Hon'ble Supreme Court while dismissing the SLP had upheld the decision of High Court for addition of entire income on account of bogus purchases in the case of M/s NK Proteins Ltd. v/s. DCIT [2017-TIOL-23-SC-IT] vide its order dated 16/01/2017. Subsequently, the department in other cases too had made 100% disallowance on account of accommodation entry/bogus purchases. Accordingly, bogus purchases amounting to ₹ 7,87,00,670/- were required to be disallowed and added back to total income of the assessee. In view of the above, I have reason to bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclose fully and truly all material facts necessary for his assessment for that assessment year. By various judicial pronouncements, this condition is now firmly established as the jurisdictional requirement to reopen of the assessment. Further, the reassessment shall not be undertaken on a mere change of opinion and reassessment proceedings are not akin to review. In such circumstances, a writ petition under Article 226 can be entertained by the Courts despite the availability of an alternate remedy of appeal. 8. Dr.Shivram, learned Senior Advocate for the Petitioner submits that there two main points on which the petitioner is entitled to succeed. First, that not only there is no failure by the Petitioner to disclose all material facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not present. Neither it has been alleged. 10. Dr. Shivram then submitted that the foundation of the first reopening notice and the second notice is the same. That is the issue of bogus purchases and accommodation of entries and that there is a clear change of opinion by the Assessing Officer. He submitted that, in the reasons supplied along with first reopening notice, the issue of bogus accommodation of entries regarding purchases was discussed. The reasons given for second reopening notice reproduced above also refer to the said fact. The reasons also refer to a decision of the Supreme Court in the case of M/s.N.K.Proteins Ltd. (2017-TIOL-23-SC-IT v. DCIT). Even this decision was before the Assessing Officer in the proceeding pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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