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TMI Blog2022 (7) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010. Admittedly no proceedings were initiated u/s 153C of the Act. Thus, there is patent non-application of mind. It is relevant to note that the author of the diary Smt. Soumya Shetty had passed away prior to the date of search. It was argued on behalf of the Revenue that Shri. Ashok Kumar Chowta had offered tax on lump-sum income. AO has not recorded his satisfaction with regard to escapement of income. On the other hand, he has based Revenue's case entirely on the statement of assessee. Assessee has placed reliance on Pullangode Rubber Produce Co.Ltd.Vs. State of Kerala ( 1971 (9) TMI 64 - SUPREME COURT] and rightly urged that assessee's admission cannot be a conclusive evidence. Therefore, these two questions merit consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the Assessee and against the Revenue. - I.T.A NO.16 OF 2015 - - - Dated:- 8-7-2022 - HON BLE MR. JUSTICE P.S. DINESH KUMAR AND HON BLE MR. JUSTICE C.M. POONACHA Appellant (By shri. V. Chandrasekhar for Shri. M. Lava, Advocates) Respondent (By Shri. K.V. Aravind, Advocate) JUDGEMENT P.S. DINESH KUMAR J, These appeals have been admitted to consider following questions of law: a) whether the Tribunal is correct in law in upholding the action of the assessing officer in reopening the assessment under Section 147 of the Act for the assessment years 2005-06, 2006-07 and 2007-08 on the facts and circumstances of the case? b) Whether Tribunal erred in law in not holding that there was no reason to bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On March 26, 2010, the Assessing Officer issued notice under Section 148 of the Act and called upon the assessee to show cause as to why the amount agreed to be offered to tax was not declared in the returns of income. On April 12, 2010, the assessee filed his return of income and declared the same income as filed in the original return of income. The case of the assessee was selected for scrutiny by issuing notice under Section 143(2) of the Act. The assessee vide letter dated May 30, 2010 objected on the ground that there was no reason to believe that the income chargeable to tax had escaped assessment. On December 24, 2010, the Assessing Officer passed Assessment orders for the assessment years 2005-06 to 2007-08. Assessee challenged it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148, 149, 151, and 153 of the Act in respect of searches made after May 31, 2003 as Section 153C has been amended with effect from June 1, 2003 and search in this case has been conducted on February 13, 2009. 5. The sum and substance of Shri. Chandrashekar's argument is, Revenue ought to have followed the procedure contemplated under Section 153C because, it's case is based on material found during the search of the premises of one Shri. Ashok Kumar Chowta. 6. In reply, Shri. Aravind submitted that Shri. Chowta had offered a lump-sum income. The ITAT has recorded that the assessee had affixed his signature in the seized diary. He argued that even though Mr.Chowta is not taxed, in view of assessee's admission, the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered in Manish Maheshwari. The Assessing Officer, in his order dated 24.12.2010 for assessment year 2005-06 has held in para 4.2 that reasons formed to reopen the assessment on the basis of assessee's voluntary depositions and seized materials are in order and further that assessee's objection on that aspect has been rejected by his order dated June 7, 2010. 10. Admittedly no proceedings were initiated under Section 153C of the Act. Thus, there is patent non-application of mind. It is relevant to note that the author of the diary Smt. Soumya Shetty had passed away prior to the date of search. It was argued on behalf of the Revenue that Shri. Ashok Kumar Chowta had offered tax on lump-sum income. 11. Further, the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the relevant entry has not been used in Shri. Ashok Chowta's case but it has been used in assessee's case who is a third party to the proceedings. The ITAT while reversing the finding of CIT (Appeals) has relied upon the signature of assessee in the seized diary. Admittedly, the author of the diary had passed away. The addition has been made in the case of assessee based on the entries in the diary but the said entries have not been used in the case of Shri. Chowta. As recorded hereinabove, the Hon'ble Supreme Court in the case of Pullengode Rubber Produce Co.Ltd.'s case has held that admission is an important piece of evidence but it cannot be said to be conclusive. Shri. Chadrashekar also placed reliance on Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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