9911796707
TMI Blog2021 (2) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 dated 17 December, 2019, hold that such a delay; supported by cogent reasons, deserves to be condoned so as to make way for the cause of substantial justice. We accordingly hold that assessee's impugned delay in filing this appeal is neither intentional nor deliberate but due to the circumstances beyond its control. The same stands condoned. Case is now taken up for adjudication on merits. 2. The assessee has raised 12 grounds of appeal and the sum and substance of which is against the action of the AO in reopening the assessment u/s 147 of the Act and making the disallowance u/s 43B towards PF, ESI and TDS, which were confirmed by the CIT(A). The grounds raised by the assessee are as under: 3. The assessee also filed an application dated 04/02/2022 to admit the following additional grounds: 3.1 After hearing the ld. AR, we admit the above grounds. 4. Briefly the facts of the case are that the assessee M/s country Club Hospitality & Holidays Limited, filed its Return of Income for the Asst.Year 2012-13 on 26-09-2012 declaring income at Rs. 3,39,39,691/- under normal provisions and book profit of Rs. 25,76,68,660/- under the provisions of section 115JB. The case was selecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gated scrutiny wherein he verified every aspect of line items of financials. He further submitted that the AO reopened the assessment only based on the information already available during the course of original assessment proceedings u/s 143(3) o the Act and no evidence was available with the AO with respect to the addition made by him and simply made the additions based on the information available in 14393) proceedings towards belated payments of PF & ESI. He contended that the AO reopened the assessment without any tangible material on hand and without satisfying himself as to the escapement of income and, thus, the basic requirement of satisfaction of the AO for reopening the assessment is missed in this case. He further submitted that the case of the assessee has been reopened re-opened beyond 4 years and the case. He submitted that the case was scrutinized u/s 143(3) and the assessee had fully and truly disclosed all the material facts before the AO for completing the assessment. He submitted that even the AO has not recorded the words "fully and truly" in the reasons recorded for reopening the assessment. He, therefore, submitted that the order passed u/s 143(3) rws 147 may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matters 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 Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2.-For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :- (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, filed its return of income for the AY2012-13 on 26-09-2012 admitting an income of Rs. 3,39,39,691/- under normal provisions and book profit of Rs. 25,76,68,660/- u/s115JB. The case was selected for scrutiny under CASS and assessment was completed u/s/143(3) on 30-03-3015 by determining total income of Rs. 3,91,58,970/- under normal provisions. Subsequently, as per the information received from OOIT{lnv) ,Unit 1(3), Kolkatta and also V basing on the enquiries conducted, it is found that assessee had deducted TOS and PF from the employees but neither deposited it to the Government Account nor issued TOS challan to the employee concerned. it also issued bogus TOS certificates. By this modus operandi assessee-company makes huge loss to the revenue. Further, when financial statements submitted by the assessee were verified, it was seen that the assessee has shown an amount of Rs. 30,32,19,076/- under the head 'short term provisions' in its Balance Sheet. When the break-up of schedule 9 (short term provisions) of the Balance Sheet was checked, an amount of Rs. 55,85,79.1/-, 24,11,672/- & 1,52,19,321/- (Total Rs. 2,32,16,784/-) was shown as PF payable, ESI payable and TOS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AY 2012-13. Whereas the language used in section 147 is that "where an assessment under sub-section (3) of section 143 or this section has been made for the relevant 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". The AO failed to record the words "fully and truly" all material facts necessary for assessment. Therefore, we are of the view that the AO has failed to record the reasons to the satisfaction of the section 147, under which, the assessment was reopened. Further, as contended by the ld. AR that there is neither any new information available with the AO nor any new tangible material in hand other than the information already existing in original assessment and further, there was no failure on the part of the appellant company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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