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TMI Blog2024 (8) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, during the course of regular assessment, the very issue of totaling difference in the impounded material was considered. Therefore, it cannot be said that the impugned notice is issued on the basis of any new tangible material having live nexus with the escaped income. AO during the course of the regular assessment was having access to the impounded material and once the same is processed by accepting revised return filed by the petitioner subsequently, on the same issue, impugned notice for reopening is not tenable as it would amount that to change of opinion on the part of the respondent AO. Also as the impugned notice is issued beyond the period of four years on 04.05.2020 and therefore, there is no failure on part of the petitioner to make fully and true disclosure of all material facts as the petitioner has made disclosure of Rs. 78.94 Lakhs on the basis of the impounded material and later on, when the respondent has found that there was a total difference of the impounded material, the same cannot be considered as failure on the part of the petitioner to make full and true disclosure. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, by letter dated 26.12.2017, gave detailed explanation in relation to disclosure of Rs. 78.94 lakh made during the survey in respect of unaccounted cash sales and also furnished copy of revised return of income as well as computation of income evidencing the fact, such disclosure has been offered as income. 5.5 The Assessing Officer thereafter, during the course of hearing on 26.12.2017, called upon the petitioner to furnish explanation in relation to totaling error in impounded material which was provided by the petitioner vide letter dated 27.12.2017. It was contended by the petitioner that the figures reflected in the impounded material vis-a-vis unaccounted sales are duly disclosed. The petitioner also brought on record certain facts in relation to events which occurred during the course of survey and the manner, in which, the disclosure was made. 5.6 The Assessing Officer after considering the reply of the petitioner, framed the assessment vide order dated 29.12.2017 under section 143 (3) of the Act without making any addition and accepting the disclosure of unaccounted cash sales. 5.7 The petitioner thereafter received the impugned notice dated 04.05.2020 under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected in the reasons recorded were considered by issuing notices dated 12.12.2017 and 26.12.2017 which were replied by the petitioner giving explanation as to the computation of undisclosed income declared as income in the revised return of income. 6.1 It was further submitted that the petitioner also by letter dated 27.12.2017 provided explanation for the error in computation in the unaccounted cash sales as per the impounded documents during the course of survey under section 133A of the Act. 6.2 It was therefore submitted that no new tangible material has come in possession for the respondent after framing of the assessment and the respondent has merely relied upon the material already available on record for reopening the case of the petitioner which is not permissible in the eye of law as it would amount to change of opinion. 6.3 It was therefore, submitted that the respondent cannot take any action under section 147 of the Act merely because he happens to change his opinion or hold an opinion different from that of his predecessor on the same set of facts. 6.4 Learned Senior Advocate Mr. Hemani further submitted that the issue has already been scrutinized at the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cash sales and unaccounted income to the Assessing Officer during the course of assessment proceedings and such failure on the part of the petitioner in disclosing the correct figure of the unaccounted sale/income resulted into under assessment for which, the notice under section 148 of the Act was issued. 7.2 It was submitted that on perusal of the reasons recorded it is clear that during the assessment proceedings for subsequent year i.e. 2016-17 when impounded material was verified, it came to light that total cash sales of the assessee for the period A.Y. 2016-17 was Rs. 4,78,32,480/- as against Rs. 4,52,47,956/- resulting into under assessment of Rs. 25,84,524/-. 7.3 In order to check the correctness of the figure of cash sales declared by the assessee, the impounded material for A.Y. 2015-16 was also verified and for the A.Y. 2015-16 correct figure of cash sales was Rs. 2,41,26,875/- as against the figure considered in the assessment year of Rs. 2,16,15,655/- resulting into under assessment of Rs. 25,11,220/-. 7.4 It was therefore submitted that there was material failure on the part of the petitioner in disclosing the true and full facts to the Assessing Officer at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2016-17. 3. On the basis of discrepancy noticed for the previous year relevant year A.Y. 2016-17, the impounded material relevant to F.Y. 2014-15 were also verified. On verification, of the impounded material contained in BF-1 to BF-14 and BF-15, for the year under reference, the total cash sale was worked out at Rs. 2,41,26,875/. During the course of Survey Action, the total cash sales for the F.Y 2014-15 as per impounded materials was computed at 2,16,15,655/- as against cash sales of Rs. 2,41,26,875/- due to totaling error. In its Books of account, the assessee had accounted total cash sales for the F.Y.2014-15 at Rs. 1,37,21,441/-. Accordingly, while recording the statement, disclosure on account of unaccounted cash sales were made to tune of Rs. 78,94,214/- by the assessee and were offered in the revised income tax return filed on 27.03.2016. 4. In the assessment order for A.Y.2015-16, the cash sales were considered at Rs. 2,16,15,655/-only. Accordingly, cash sales to the tune of Rs. 25,11,220/- remained to considered at the time of survey proceedings as well as in the assessment order passed u/s. 143 (3) of the Act. Thus the unaccounted cash sale to the tune of Rs. 25,11,22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the petitioner to make full and true disclosure. The Assessing Officer during the course of the regular assessment has accepted the revised return filed by the petitioner disclosing the unaccounted cash sales of Rs. 78.94 Lakhs and while framing the assessment under section 143 (3) of the Act. 12. The Hon ble Apex Court in case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC) in such circumstances has held as under: 2. A short question which arises for determination in this batch of civil appeals is, whether the concept of change of opinion stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? xxxxxxxx 6. prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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