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TMI Blog2022 (1) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... d Accountants. We have perused the said document and petitioner has provided all the details as sought for. In fact these figures also find a mention in the statement of profit and loss filed by petitioner. It is true that these points have not been discussed in the assessment order. But as held by the Division Bench of this Court in Aroni Commercials Limited. [ 2014 (2) TMI 659 - BOMBAY HIGH COURT] once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment.. It is not necessary that an assessment order should contain reference and / or discussion to disclose its satisfaction in respect of the query raised. Unexplained dividend receipts - As in the profit and loss account, break-up of other income has been provided. It indicates a total income of ₹ 15,11,01,889/- of which ₹ 13,25,26,684/- relates to dividend from foreign companies. The assessment order certainly includes income from other sources of ₹ 15,11,01,889/-. Therefore, even this issue has been a subject of consideration of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of Certiorari thereby quashing, setting aside of the Draft Assessment Order dated 25th September 2021 after verifying the propriety, legality and correctness thereof; 2. Petitioner is engaged in the business of a service provider and marketer of equipments and services to the Indian and Indonesian heavy engineering industry. Petitioner earns its income as intermediary and indenting agent for different Chinese companies in the field of power, steel, aluminium and zinc. Petitioner filed its return of income for A.Y. 2013-14 on 30th September 2013 declaring total income of ₹ 1732, 05,399/-. The case was selected for scrutiny and notices under Section 143(2) and Section 142(1) of the Income Tax Act, 1961 (the Act) were issued. In response to the statutory notices, petitioner s authorized representative attended on behalf of petitioner and filed submissions / details from time to time. 3. An assessment order dated 30th November 2015 came to be passed under Section 143(3) of the Act assessing petitioner s income as per the return of income filed, i.e., ₹ 17,32,05,400/-. 4. Petitioner, thereafter, received a notice dated 20th March 2020 under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession all primary facts, it was for him to make necessary enquiries and draw proper inference. With this background on what the law is, let us examine the facts. 7. The reasons for re-opening the assessment read as under:- In the case of assessee there is claim of expenses made without establishing the nature of expenses with respect to work done and documentary evidences. Assessee is well aware of the claim of expenses made for which proving was not made, accordingly there is failure on part of assessee in making true and full disclosure of all particulars of income. Similarly, the Tax Audit Report being independent report of Tax Auditor certifying that, there is no brought forward losses whereas assessee claimed set off of brought forward losses of ₹ 16,20,897/- thereby clearly proving not only the escapement of income but failure on part of assessee in making true and full disclosure of all particulars of income. In respect of dividend receipts, merely claim of receipts was made without submitting the Annual Accounts and Balance sheet of the foreign companies. The genuineness of the dividend receipts can be proved with the Annual Accounts of the foreign compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is not necessary that an assessment order should contain reference and / or discussion to disclose its satisfaction in respect of the query raised. Paragraph 14 of Aroni Commercials (supra) reads as under:- 14) We find that during the assessment proceedings the petitioner had by a letter dated 9 July 2010 pointed out that they were engaged in the business of financing trading and investment in shares and securities. Further, by a letter dated 8 September 2010 during the course of assessment proceedings on a specific query made by the Assessing Officer, the petitioner has disclosed in detail as to why its profit on sale of investments should not be taxed as business profits but charged to tax under the head capital gain. In support of its contention the petitioner had also relied upon CBDT Circular No.4/2007 dated 15 June 2007. (The reasons for reopening furnished by the Assessing Officer also places reliance upon CBDT Circular dated 15 June 2007). It would therefore, be noticed that the very ground on which the notice dated 28 March 2013 seeks to reopen the assessment for assessment year 2008-09 was considered by the Assessing Officer while originally passing assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that income chargeable to tax has escaped assessment. 10. As regards point (c) raised in the reasons, in the profit and loss account, break-up of other income has been provided. It indicates a total income of ₹ 15,11,01,889/- of which ₹ 13,25,26,684/- relates to dividend from foreign companies. The assessment order certainly includes income from other sources of ₹ 15,11,01,889/-. Therefore, even this issue has been a subject of consideration of the Assessing Officer while completing the assessment. 11. Shri. Walve submitted, relying upon a judgment of the Division Bench of this Court in Amaya Infrastructure Private Limited Vs. Income Tax Officer, Ward 12(1)(1) [2017] 79 taxmann.com 345 (Bombay), that once petitioner has participated in the assessment proceedings, this Court should not interfere and petitioner should be relegated to explore the effective alternative remedy available under the Act. 12. It is true that Amaya Infrastructure (supra) lays down the proposition that once an assessee has participated in the assessment proceedings, the Court should not interfere. In Amaya Infrastructure (supra), the Court did not interfere because on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, could not take steps in pursuance of the notice dated 20th March 2020. The Assessing Officer issued a notice dated 30th September 2020 under Section 142(1) of the Act calling upon petitioner to furnish accounts and documents in relation to A.Y. 2013-14 in the prescribed manner. In pursuance of the said notice, petitioner tried to file its return of income online but due to technical glitches / issues, the same could not be uploaded online. In fact petitioner even raised this issue with respondents vide a letter dated 15th October 2020. No response was received by petitioner. Thereafter on 24th February 2021, petitioner made online submission on the website of income tax and requested to consider the original return filed in response to notices dated 20th March 2020 and 30th September 2020. By its letter dated 21st April 2021, petitioner also informed respondents that on numerous occasions it tried to file return for A.Y. 2013-14 online but on account of technical glitches / issues the correct income tax returns could not be filed and it was reported to CPC. Again no response was received. 15. Petitioner thereafter became aware about the Faceless Scheme introduced by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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