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TMI Blog2022 (5) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... wn separately as a liability. Whatever may be the worth of the explanation put forward by the writ applicant, it is expected of the Assessing Officer to apply his mind and decide the same accordingly. All that the Assessing Officer has said while disposing of the objections is that it is not an appropriate time to discuss the genuineness of the transactions on merits. We partly allowed this writ application. The impugned notice and the order disposing of the objections are hereby quashed and set aside. The matter is remitted to the Assessing Officer for fresh consideration of the objections. - R/SPECIAL CIVIL APPLICATION NO. 21825 OF 2019 - - - Dated:- 5-4-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, preferred to deposit cash with our various bank accounts. To verify the correctness of the cash deposit, the assessee was requested to furnish month-wise sales made in cash as well credit. Accordingly, the assessee vide letter dated 07/02/2019 furnished the details. On verification of the same, it is noticed that during the year the assessee has made total cash sales of Rs.3,81,79,67,410/-. Accordingly, the assessee was requested to reconcile the cash sales and cash deposited made. In response thereto, the assessee vide letter dated 08/02/2019 furnished a reconciliation, a copy of the same is enclosed herewith for kind reference. On verification of the reconciliation, it can be seen that the assessee failed to reconcile the cash deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice is verified. (i) As per PAN data base the case of the assessee is found to belong to the territorial jurisdiction this ward. (ii) The assessee has filed return of income for F.Y. 2011-12. The total amount of Rs.3,10,20,401/- has escaped assessment within the meaning of section 147 of the I.T. Act. 5. Findings of the AO : In view of the above facts, it is concluded that assessee has filed return of income for A.Y. 2012-13. The assessee had deposited cash in bank for Rs.3,10,20,401/- during A.Y. 2012-13. 6. Basis of forming reasons to believe and details of escapement of income : The fact remains that the assessee has made excess cash deposit in bank for Rs.3,10,20,401/- and filed the return of income for A.Y. 2012-13 As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scapement of income. It is submitted that the difference between cash deposited and sales shown arises due to the VAT component in the cash deposited that is not part of Sales but shown separately as liability. It is submitted that the purchaser of gold purchases gold at a price inclusive of VAT but the Assessee is following exclusive method of accounting where VAT component is not part of sales but kept separate as liability. It is therefore submitted that the difference arises and in fact there is no income that has escaped assessment. It is submitted that the investigation team had not inquired further with the Assessee therefore the Assessee did not provide the same. (A copy of the complete reconciliation between the cash deposited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the writ applicant and Mr. M.R. Bhatt, the learned Senior Counsel appearing for the Revenue. 6. The principles governing the reopening of the assessment under Section 147 of the Act may be summarized as under: [i] To confer jurisdiction to the Assessing Officer to reopen the assessment under Section 147 of the Income-tax Act, beyond four years from the end of assessment year, following two conditions must be satisfied; [a] that the Assessing Officer must have reason to believe that the income chargeable to tax has escaped assessment; and that ; [b] same occasioned, on account of either failure on the part of the assessee to make a return of his income for that assessment year, or to disclose fully and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the affidavit filed by the Department before the Court. (vi) What would amount to true and full disclosure of all material facts must depend on each case and no strait-jacket formula of universal application can be provided. It can however safely be stated that the duty of the assessee is to disclose primary facts and it is not his duty to lead the Assessing Officer to any particular inference of fact or of law on the basis of such primary disclosures. In other words, once the assessee discharges his duty of stating all the primary facts, what inferences and conclusions should be drawn is the duty of the Assessing Officer. (vi) At the time of ascertaining whether the notice was validly issued, what could be the probable con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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