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TMI Blog2024 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... ings void-ab-initio is contradictory to the decision held at para 5.2 (a) & 5.2(b), page 12 of the said order of the CIT(A). 3.(a) The assessee had failed to disclose the nature of transactions with M/s. D.B.Hospitality P Ltd, M/s. SRSR Builders P Ltd M/s. Karur KCP packaging ltd. The amount received was kick back money and not the loan or credit. Therefore, the. assessee claim that the said transactions had already been disclosed earlier proceedings is not correct as the nature of transactions and its implication in the assessee's hand was neither disclosed nor examined. Under such circumstance, the receipt of kick back and its disclosure as creditor, cannot be claimed as true & full disclosure. (b) The assessment order at last para of page 2 & 3 that the AO, has held that money originated for DB Hospitality which is a sister concern of Swan Telecom &%' DB Reality and all the entities were controlled by Shahid Balwa who is promoter and was one of the main accused in 2G scam. Hence, the funds received from SRSR Builders P Ltd were not loan credits, but the kick back. money received and taxable in the hands of the assessee. Therefore, the CIT(A)'s decision that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 26-03- 2013, made addition on account of land purchase, cash payment for land purchase, disallowance of expenses etc. The loan taken from aforesaid entity was accepted and no addition was made in respect thereof. 3.2 The order was subjected to revision u/s 263 vide order dated 08- 08-2014 wherein the issue of addition u/s 68 with respect to an entity M/s Pacific Chennai Infrastructure Pvt. Ltd. was flagged. The same was given effect to vide an assessment order u/s 143(3) r.w.s. 263 on 28-11- 2014 wherein Ld. AO made certain other additions of cash deposit and cash payment. The first appellate order was passed against this order on 06-02-2015 partly allowing the appeal of the assessee. The order giving effect to first appellate order was passed on 29-04-2015. The same was rectified u/s 154 on 25-02-2016. The cross-appeals against these proceedings got disposed-off by Tribunal vide ITA Nos.1155 & 1156/Mds/2015 order dated 20-04-2017. 3.3 In the meanwhile, Ld. AO sought second reopening and issued notice u/s 148 on 27-03-2015. In the recorded reasons, it was alleged that the advance of Rs. 25.11 Crores was received by the assessee from M/s DB Hospitality Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of purchasing the land, the money was transferred to various group companies of the assessee as well as in the account of his father. 3.7 The Ld. AO further noted that there was reverse flow of money from the account of the assessee to the account of M/s DB Hospitality Pvt. Ltd. on various dates. Pertinently, the money got transferred to the assessee from 15-10-2007 which was very close to 2G scam date of 25- 09-2007.Considering the facts that M/s Swan Telecom made profit of Rs. 3500 Crores in the deal, it was natural that some kickback would go the persons who had done them this favor. Therefore, the money as originated from M/s DB Hospitality Pvt. Ltd., who was a sister concern of Swan Telecom, to the assessee was kickback money of 2G scam. Accordingly, the advance of Rs. 25.11 Crores was added to the income of the assessee as 'income from other sources' and assessment was finalized. Appellate Proceedings 4.1 The Ld. CIT(A) concurred with assessee's legal submissions that Ld. AO was bound to disclose the reasons for reopening to the assessee. The assessee could raise objection against the same and AO was duty bound to dispose-off the objection by way of speaking order before p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified. The reassessment was only a case of review and a mere change of opinion on the part of Ld. AO. 4.4 The Ld. CIT(A) also referred to the decision of Hon'ble Supreme Court in the case of Techspan India Pvt. Ltd. (92 Taxmann.com 361) to support the decision on legal grunds. The facts were stated to be identical. Accordingly, the assessment was held to be void ab initio. Aggrieved, the revenue is in further appeal before us. Our findings and Adjudication 5. From the facts as narrated in preceding paragraphs, it could be seen that the original return of income as filed by the assessee was subjected to reassessment proceedings and an assessment was framed u/s 143(3) r.w.s. 147 on 26-03-2013 determining income of Rs. 181.40 Lacs. In those proceedings, Ld. AO issued notice on 22-02-2013 calling for certain details from the assessee. The same include query on loans taken from SRSR. The assessee was asked to produce documentary evidences to substantiate the same. The assessee, vide reply dated 02- 03-2013, supplied the requisite information / details as called for by Ld. AO. Further details were called in letter dated 12-03-2013 which were also supplied by the assessee in its reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be the intention of the legislature. The said provision was incorporated in the scheme of the IT Act so as to empower the Assessing Authorities to re-assess any income on the ground which was not brought on record during the original proceedings and escaped his knowledge; and the said fact would have material bearing on the outcome of the relevant assessment order. 9. Section 147 of the IT Act does not allow the re-assessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and Section 147 confers the power to re-assess and not the power to review. 10. To check whether it is a case of change of opinion or not one has to see its meaning in literal as well as legal terms. The word change of opinion implies formulation of opinion and then a change thereof. In terms of assessment proceedings, it means formulation of belief by an assessing officer resulting from what he thinks on a particular question. It is a result of und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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