9911796707
TMI Blog2023 (2) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... as been added back to the total income at the time of Computation of Income. There is no mention of this 'write off due to loss' in Annexure 4 to Clause 14 of Audit Report in Form 3CD, pertaining to depreciation or in the Notes to Accounts. However, the assessee vide his reply dated 13.02.2014 had appended a list of assets written of during the PY 2009-10 wherein he has accepted that the date of capitalization is 10.05.2006 for gross asset value of Rs. 2,66,21,927/- on which the accumulated depreciation is Rs.84,88,990/- and the Net book Value is Rs. 1,81,32,937/- On physical verification, these assets have not been found, although depreciation at Rs.84,88,990, on the assessee's own admission, has been claimed on these assets during the previous years, since the assessee has taken over the company 'Gharda Chemical's and these assets have been factored for valuation purposes. The physical availability or otherwise of assets, is the purview of the assessee and the onus is on him to establish as to the period from which the assets have gone missing. Failing this obligation, the Assessing Officer is compelled to take a stand that any prudent person would do, as stated in Sec 114 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be reopened within a period of four years from the end of the relevant assessment year, the Assessing Officer has to have reasons to believe that income chargeable to tax had escaped assessment. 8. In Commissioner of Income-tax Vs. Kelvinator of India Ltd. (Supra), the Apex Court held : "4 ..............Therefore, post-1-4-1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of "change of opinion" as an inbuilt test to check abuse of power by the Assessing Officer. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income escaping assessment due to "oversight, inadvertence or mistake" by the Income Tax Officer must fall within section 34(1)(b) of the Indian Income Tax Act, 1922 did not lay down correct law in the light of the view expressed by the Apex Court in Maharaj Kamal Singh v. Commissioner of Income Tax [1959] Sup. 1 SCR 10 and Commissioner of Income Tax v. Raman & Company [1968] 1 SCR 10. 12. It is equally settled as held in Income-tax Officer Vs. Lakhmani Mewal Das [1976] 103 ITR 437 that the duty and responsibility of the assessee is only to make a full and true disclosure of the primary facts while it is for the AO to draw the correct inference from those primary facts and that it is not the responsibility of the assessee to advise the Income-tax Officer with regard to the inference which he ought to draw from those primary facts. 13. In the present case, it can be seen that a return of income was filed by the petitioner for the assessment year 2010-11 declaring a loss of Rs.4,27,46,522/-. In the computation of income, the petitioner added back an amount of Rs.1.81 Crore to the business income and did not claim the said amount as deduction in computing its taxable income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under section 147 of the Act. The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of Section 143 or Sub-section (3) of Section 143. When a regular order of assessment is passed in terms of the said sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind." 17. It can also be seen from the reasons recorded that there was no new material which had come to the notice of the Assessing Officer and the entire reference in the reasons recorded is only to the material on record. 18. In Jindal Photo Films Ltd. Vs. Deputy Commissioner of Income Tax [1998] 234 ITR 170, the Court, in the background of section 147 of the Act, observed : "...................all that the Income-tax Officer has said is that he was not right in allowing deduction under Section 80I because he had allowed the deductions wrongly and, therefore, he was of the opinion that the income had escaped assessment. Though he has used the phrase "reason to believe" in his order, admittedly, between the date of the orders of assessment sought to be reopened and the date of forming of opinion by the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
