9911796707
TMI Blog2021 (2) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... or issuance of an order restraining the Respondents from taking any steps towards implementation of notice dated 19.03.2020 (Annexure-9) and the order dated 05.01.2021. Petitioner has further sought issuance of a writ / order / direction upon the Respondents for withdrawal and / or cancellation of the notice dated 19.03.2020 and order dated 05.01.2021 forthwith. 3. Necessary facts relevant for adjudication of the prayer and the issue raised in the writ petition, are as under: Petitioner is a Company engaged in the manufacturing of wire, wire ropes, wire rods, wire drawing and allied machines, steel bars and billets, pig iron, bright bars, house wire, etc. It has its registered office at Kolkata. Original return of income for A.Y. 2013-14 was filed on 29.11.2013 electronically by the petitioner Company. The revised return of income for the same assessment year was filed electronically on 26.03.2015. Notice under section 142(1) of the Income Tax Act, 1961 (hereinafter to be referred to as "Act' in short) was issued upon the petitioner on 25.07.2016 and 10.11.2016 (Annexure-3 series) asking the petitioner to specifically provide the details of the purchase of the property. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matter of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.-Production before the Assessing Officer of account books or other evidence from which material evidence could, with due diligence, have been discovered by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 : Provided that in a case- (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005 in response to a notice served under this section, and (b) subsequently a notice has been served under sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to sub-section (2) of section 143, as it stood immediately before the amendment of said sub-section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time limit for making the assessment, re-assessment or recomputation as specified in subsection (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice: Provided furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im as the agent of such non-resident, the notice shall not be issued after the expiry of a period of (six years) from the end of the relevant assessment year. Explanation.-For the removal of doubts, it is hereby clarified that the provisions of sub-sections (1) and (3), as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012." 5. Learned Senior counsel for the petitioner has referred to the pleadings on record in the writ petition to substantiate his contention that the assessee had not only made full and true disclosure of his income by filing his return for the A.Y. 2013-14 and revised return for the A.Y. 2013-14 within time, but had also responded to the notice under section 142(1) dated 25.07.2016 and 10.11.2016. In particular reference to Item No. 29 of the Questionnaire, he had stated in his submission dated 28.09.2016 that the Company had sold no property during the F.Y. 2012-13 relevant to the A.Y. 2013-14. Petitioner submitted the details of the purchase of property by the Company enclosed as Annexure-4 to his written submission dated 28.09.2016 (Annexure-4 series). Assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer, I Ward, District VI, Calcutta and others versus Lakhmani Mewal Das [(1976) 3 SCC 757, para-7] in support of the contention, that once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for the Assessing Officer to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else, far less the assesse, to tell the assessing authority what inferences whether of facts or law should be drawn. Once the assessee has made true and full disclosure of the primary facts, his duty ends. It is not the responsibility of the assessee to advise the Income Tax Officer with regard to the inference which he should draw from the primary facts. If an Income Tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment. 7. Learned Senior counsel for the petitioner submits that re-assessment proceeding cannot be initiated on the basis of change in opinion by the Assessing Officer. In support of his contention, he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s table, she has placed the reply dated 14.09.2020 (Annexure-9) given by the Assessing Officer at page-178 i.e. the chart which contains the name of persons from whom lands were purchased by the petitioner in the district of Seraikella-Kharawan during the F.Y. 2012-13. Learned counsel Ms. Sinha submits that the Assessing Officer on cross verification from the report of the District Registrar, Seraikella-Kharsawan, found that the Company had actually purchased land of Rs. 30.04 crores from 11 different persons given in the table thereunder on 26.02.2013. She fairly submits that the relevant letter dated 14.09.2020 enclosed at Annexure-9 page-178 onwards by the petitioner however contains the name of eight persons, whereas the total number of such persons from whom petitioner had purchased lands is 11. She has in particular referred to the names of Manaranjan Beg, Mansaram Bej, Lalu Beg, Bikram Veg and Champa Devi from whom, the petitioner had purchased lands on 26.02.2013 within the F.Y. 2012-13. However, the details of the name of the vendors and the lands purchased by the petitioner, as furnished at page-108 to his reply dated 28.09.2016, did not disclose that the lands were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued for the relevant assessment year not more than six years thereafter, if the income chargeable to tax which has escaped assessment amounts or is likely to amount to one lakh rupees or more for that year. It is submitted that in the facts of the present case, the income which has escaped assessment is definitely more than Rs. 1.00 lakh. 9. In the aforesaid facts and circumstances, it is submitted that the reliance of the petitioner on the decisions, cited above, shall not come to his aid. The decisions relied upon by the petitioner are distinguishable on the glaring facts of the present case. Petitioner had failed to disclose the primary facts before the assessing authority, whereupon the assessing authority could have drawn an inference. The ratio in the case of Calcutta Discount Co. Ltd (Supra) and Lakhmani Mewal Das (Supra) therefore does not apply to the petitioners' case. It is submitted that initiation of the reassessment proceeding is not based on change in opinion by the Assessing Officer because these materials were not brought on record by the assessee by making true and full disclosure of material facts necessary for his assessment of that assessment year, as per fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n submission submitted by him on 25.07.2016 and 10.11.2016 in response to the notice under section 142(1) of the Act. On specific query being made during course of submission, learned counsel for the petitioner has, in particular, referred to the details of the purchase of lands from different persons furnished at Annexure-4 at page 108 to the reply dated 10.11.2016. Petitioner had thus made true and full disclosure of all material facts i.e. the primary facts before the Assessing Officer during the course of assessment proceedings. If in the assessment order dated 05.12.2016, the Assessing Officer did not find any instance of income having escaped assessment, merely by relying upon the report of the District Registrar, Seraikella-Kharsawan without any independent application of mind by the Assessing Officer, assessment proceedings could not have been reopened under section 148 of the Act. (ii) It is the categorical case of the petitioner that reassessment proceedings initiated under section 148 of the Act are barred by limitation. It is stated that the notice dated 19.03.2020 is beyond the period of four years prescribed under section 147 of the Act. 12. However, on careful an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonably drawn and what legal inferences could ultimately be reasonably drawn therefrom. However, the principles laid down by the Apex Court in these decisions would not come to the help of the petitioner since on the face of the record, as noticed herein-above, petitioner had failed to make true and full disclosure of the relevant material facts necessary for his assessment for the A.Y. 2013-14 at the time of filing of return or even revised return or in reply to the notice under section 142 (1) of the Act vide his replies dated 25.07.2016 and 10.11.2016. For the same reasons, it cannot be said that initiation of reassessment proceedings is based upon mere change in the opinion by the Assessing Officer and not on the basis of relevant material facts having come to his notice to form a reasonable belief after close of the assessment proceedings. Therefore, reliance upon the decision in the case of Kelvinator of India Limited (Supra), by the petitioner, is also misplaced. As it appears from the materials on record, it is not the report of the District Valuation Officer which has formed the basis of initiation of reassessment proceedings as in the case of Dhariya Construction Company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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