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TMI Blog2021 (2) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... f his total income and further makes it obligatory to disclose all material facts necessary for his assessment for that year fully and truly. It was the duty of the assessee to bring to the notice of the respondent with regard to transactions made in the bank account which were relevant for the assessment for that year. Merely submission or production of books of accounts or other documents is not sufficient. It is profitable to refer the explanation 1 of Section 147 of the Act, which explains that, the production before the Assessing Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of foregoing proviso. Thus we hold that, details available in the books of account for balance sheet or profit or loss account cannot absolve the assessee from his disclosure obligation under Section 147 of the Act as in the instant case, without any scrutiny, the original return was process under Section 143(1) of the Act. It cannot be said that there was no material before the Assessing Officer to reopen the assessment and he proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re issuing the notice under Section 148 of the Act for reopening of the assessment for the year under consideration, the Assessing Officer had recorded the following reasons on 15.05.2019, which reads as under: 1. The assessee has filed his return of income u/s.139 of the IT Act for AY 2014-15 on 26.03.2015 declaring total income of ₹ 8,56,600/. 2. During the course of survey U/s. 133A of the IT Act on 02.12.2016 in the case of Aphrodite Infra Pvt. Ltd. Avenue 77, F.P 77, Deside L.P.Savani School, Canal Road, Vesu, Surat, back up of coimputer, laptop, mobiles etc were taken in Hard Disk and the same was impounded as per Annexure A5. In which, back up data and whatsapp images taken from mobile of Shri Hitesh Babulal Ramani were stored and it is seen from the same that Shri Hitesh Babulal Ramani had maintained a bank account No.10021001006771 with Prime Co.Op Bank Ltd, Bhulka Bhavan Branch, Surat during F.Y. 201314 which was not reflected either in the books or in the return of income of Shri Hitesh B. Ramani. Accordingly, statement of Shri Hitesh Babulal Ramani was taken u/s. 131 of the IT Act on 20.01.2017 during post search inquiry. Page No.15 and 16 of the seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt in ITR is absolutely baseless and factually incorrect. It was further submitted that the alleged bank account maintained with the Prima Coop. Bank Ltd was duly reflected in his ITR filed on 26.03.2015. In this regard, it was pointed out that the alleged bank account was opened on 21.05.2013 and was closed on 22.10.2013. Therefore, the account which was closed in the same year was not in existence at the year end i.e. on 31.03.2014. In this circumstances, question does not arise to show the closed bank account and it cannot be said that, account was undisclosed. (2) The second contention raised by the writ applicant that, the Assessing Officer has initiated the proceedings for reopening on the basis of the information received from the Investigation Wing, Surat and it is settled law that there cannot be re-opening of assessment solely relying upon the information as the Assessing Officer has not applied his mind and failed to consider material available with him. Therefore, while forming the belief with regard to income has escaped assessment, the Assessing Officer has not made any independent inquiry and therefore, reopening proceedings may kindly be dropped. (i) Vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also indicates and fully established that the income which is chargeable to tax has escaped assessment as the assessee has not offered true income in the return of income filed by him. It is also pointed out that in this case, no scrutiny assessment has been earlier made in this case, hence, the transactions appearing in the bank account has earlier not been verified by the department. 3. Being aggrieved with the proceedings of reopening of the assessment undertaken by the respondent, the writ applicant has come up before this Court by filing this writ application. 4. We have heard Mr. Hardik Vora, learned counsel appearing for the writ applicant and Mrs. Mauna M. Bhatt, the learned Standing Counsel appearing for the respondents. 5. Mr. Hardik Vora, learned counsel appearing for the writ applicant has raised the following contentions: a) The action of the respondent to reopen of the assessment for the year under consideration and issuance of the impugned notice are absolutely bad in law and against the provisions of the statute. b) It was submitted that, Assessing Officer has mainly relied upon the information received from the Investigation Wing, Surat, while recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions were reflected in the bank statement. Therefore, the reasons for reopening of the assessment that the writ applicant failed to disclose the alleged bank account and the amount mentioned in the account was unaccounted income are factually incorrect. 6. In view of the above contentions, learned counsel appearing for the writ applicant submits that present petition deserves consideration and hence, the same may kindly be allowed. 7. Mrs. Mauna Bhatt, the learned Standing Counsel appearing for the Revenue has vehemently opposed this writ application and urged that, after receiving the information, the Assessing Officer had physically verified the return of income and other details with regard to bank account as reported by the Investigation wing and it was found correct in respect to credit entries to the tune of ₹ 85,11,543/and thereafter, the Assessing Officer has applied his mind independently and had formed the opinion that the income chargeable to tax has escaped assessment. She further pointed out that, by opening and closing the bank account in the same financial year involving huge cash transactions itself is a sufficient reason to believe that the income has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... believe that the income chargeable to tax has escaped assessment and (ii) he must also have reason to believe that such escapement occurred by reason of either failure on the part of the assessee to make return of his income or omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that year. 10. After having heard the learned counsel appearing for the respective parties and considering the material on record, the issue arise in the present case, whether before reopening of the assessment, reasonable belief formed by the Assessing Officer with regard to escaped income is based on the some material or not ? 11. We have perused the reasons for reopening, wherein, the Assessing Officer had specifically recorded that, the bank account maintained with Prime Coop. Bank was not reflected either in the books or in the return of income and upon physical verification of the IT return and other documents like ITS details, AIR information, the undisclosed bank account as reported by the Investigating Wing, wherein, credit of ₹ 85,11,543/which was unaccounted and finally came to the conclusion that, the incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other evidence has been produced, there is no duty on the assessee to disclose further facts, which on due diligence, the Income-tax officer Officer might have discovered, the Legislature has put in the Explanation, which has been set out above. In view of the Explanation, it will not be open to the assessee to say, for example: I have produced the account books and the documents: You, the Assessing Officer examine them, and find out the facts necessary for your purpose: My duty is done with disclosing these account-books and the documents . His omission to bring to the Assessing Authority's attention these particular items in the account books, or the particular portions of the documents, which are relevant, will amount to omission to disclose fully and truly all material facts necessary for his assessment. Nor will he be able to contend successfully that by disclosing certain evidence, he should be deemed to have disclosed other evidence, which might have been discovered by the assessing authority if he had pursued investigation on the basis of what has been disclosed. 16. Therefore, in view of the explanation of Section 147 of the Act and the law propoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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