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TMI Blog2021 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... aside and the matter is remitted to the AO. - R/SPECIAL CIVIL APPLICATION NO. 22183 of 2019 - - - Dated:- 11-5-2021 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MR. JUSTICE ILESH J. VORA Appearance: MR OMKAR C DAVE(2003) for the Petitioner(s) No. 1 MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1 ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. By filing this petition under Article 226 of the Constitution of India, the writ applicant being individual assessee has challenged the Notice dated 30.03.2019 issued under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act for short), in respect of Assessment Year 2012-13 by the Assessing Officer, on the ground that same is illegal, without jurisdiction, as prescribed under the Act. 2. Briefly stated the facts of the case are that the writ applicant being individual assessee filed his return of income on 30.09.2012, declaring the total income at ₹ 6,67,900/-. On 07.03.2015, the assessment was framed under Section 143(3) of the Act. During the assessment proceedings various details were called for by the AO including the details pertaining to the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to comply with the summons thereby failed to justify the nature and genuineness of the credit entries. Therefore, the said credit entries are unexplained/undisclosed. In view of such specific and pointing discovery of investigation wing, there is a clear case of escapement of income in the hands of the assessee (since the assessee did not disclose true and full facts related to this transaction before the Department even during assessment proceedings u/s. 143(3) of the I.T. Act). 5 6. Findings of the AO Basis of forming reason to believe and details of escapement of income: In this case, specific information was received from Investigation Wing, Surat that assessee had credit entries to the tune of ₹ 135,76,68,454/- in his bank account and failed to comply with the summons thereby failed to justify the nature and genuineness of the credit entries. Therefore, the said credit entries are unexplained / undisclosed. From the above facts. It is clear that credit entries of ₹ 135,76,68,454/- are nothing else but unexplained / undisclosed Further, the assessee on perusal of assessment records, it has been observed that the assessee has not disclosed true a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration thereby necessitating reopening u/s. 147 of the IT Act. It is true that the assessee has filed a copy of audited P L A/c. and balance sheet along with return of income where various information/ material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. It is pertinent to mention here that even though the assessee has furnished annual report, audited P L A/c. and balance sheet or other evidence, however, the requisite material facts as noted above in the reasons for reopening that material evidence could not be discovered by the AO and could have been discovered with due diligence, accordingly attracting provisions of Explanation 1 of section 147 of the IT Act. It is evident from the above discussion that in this case, the issues under consideration were never examined by the AO during the course of regular assessment. This fact is corroborated from the contents of notices issued by the AO u/s. 143(2)/142(1) and order sheet entries recorded during the 143(3) proceedings. It is important to highlight here that material facts relevant for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018) 99 Taxmann.com 409 (Delhi), further contended that there is a clear violation of the directions issued by the Delhi High Court. It was submitted that at the time of providing the reasons recorded for the reassessment, the respondent failed to provide the necessary approval accorded by the Competent Authority and other documents which may form the basis of reasons and enquiry conducted by the AO. 9. It was submitted by the learned counsel Mr. Sunit Shah for the writ applicant that in the previous assessment proceedings, the writ applicant had furnished all the details and based on the details provided, the AO had framed the assessment order under Section 143(3) of the Act, and now on the same material, the AO sought to reopen the assessment which is nothing but a change of opinion and therefore, mere change of opinion, the reopening of concluded assessment is not permissible in law. 10. It was submitted by the learned counsel for the writ applicant that the impugned notice has been issued on 30.03.2019 in relation to AY 2012-13, which clearly beyond the period of 4 years from the end of the relevant assessment year and as such in absence of any failure on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N Driveshaft (supra), the Supreme Court has laid down the procedure as to the manner of dealing with the objections raised against the notice under Section 148 of the Act. The Supreme Court has held that when a notice under Section 148 of the Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notice. It was further held that the AO is bound to furnish reasons within a reasonable time and upon receipt of reasons, the noticee is entitled to file an objection to issuance of notice and AO is bound to dispose of the same by speaking order. In the case of SABH Infrastructure Ltd (supra), the Delhi High Court, has held that the exercise of considering the assessee s objections to the reopening of the assessment is not a mechanical ritual. It is a quasi judicial function. The order disposing of the objection should deal with each objection and give proper reason for conclusion. The order should reflect proper application of mind. 14. Applying the dictum as laid down by the Supreme Court in the case of GVK Driveshaft (supra), we are of the view that disposing of the objections raised by the assessee against the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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