TaxTMI 
TaxTMI 
2012 (11) TMI 1087
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....cer u/s. 148 are illegal as the notice has been issued after four years from the end of the assessment year and the issue in question has already been discussed in the assessment proceedings u/s. 143(2). iii)(a) The order of the Ld. Commissioner of Income Tax (A)-II, New Delhi is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal. 3. In this case Assessing Officer noted that on the basis of information received from Investigation Wing of the department the assessee company has obtained the accommodation credit entries as a beneficiary from the entry operator. The assessment for A.Y. 2001- 02 and was reopened u/s. 148 of the Act and a notice to that effect was issued on the assessee. Assessee was further asked to provide the evidence to establish the genuineness of the transactions relating the cash credits received by the assessee in respect of whom information had been received from the Investigation Wing. Assessee's submission in this regard was as under:- "All these transactions are recorded in the books of assessee and copy of....
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....ficer issued detailed questionnaire. He further observed that the detailed reply in this regard was given by the assessee vide letter dated 12.12.2003. Attention of the Ld. Commissioner of Income Tax (A) was further drawn to the confirmation from Richie Rich, copy of acknowledgement of return of Richie Rich and copy of ledger account. Ld. Commissioner of Income Tax (A)'s attention was further drawn to the audit report whereby detail of all loans are appearing. From this Ld. Commissioner of Income Tax (A) opined that the above established that the Assessing Officer in the original assessment had a clear and detailed occasion to consider this issue which has now been made subject matter of reassessment. Ld. Commissioner of Income Tax (A) further observed that during the original assessment proceedings assessee had filed the following evidences on the same issue:- (i) Details of unsecured loans with confirmations. (ii) Details pertaining to M/s Richie Rich Overseas (P) Ltd. with confirmation. (iii) Copy of ITR, ledger account etc. (iv) The Assessing Officer had even issued summons to one M/s Mahan Enterprises who filed the response dated 18.12.2003 regarding the same trans....
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.... response to a notice issued under subsection( 1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year." 6.1 From the above it is clear that after the expiry of 4 years, reopening can be done only if the income chargeable to tax has escaped assessment by reasons of failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for that assessment year. We find that in this case assessee has disclosed all the relevant materials at the time of original assessment. 6.2 We further note that no fresh material has been relied upon in this case for reopening. The reopening is based upon the materials disclosed by the assessee at the time of the original return. The reasons recorded also do no contain the allegation that there was failure on the part of the assessee to disclose all material facts. Thus, we find that proviso to section 147 is clearly applicable in this case. 7. In this regard, we also refer the decision of the Hon'ble Jurisdictional High Court in the case of Wel Intertrade P. Ltd. and Another vs. ITO (308 ITR 22). In this case it was h....
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.... of four years. The escapement of income must also be occasioned by the failure on the part of the assessee to disclose material facts fully and truly. This is a necessary conditions for overcoming the bar set by the proviso to section 147. If this condition is not satisfied, the bar would operate and no action under section 147 could be taken." 9. We further find that the Ld. Commissioner of Income Tax (A) has given a finding in this regard that the Assessing Officer has issued detailed questionnaire in the original assessment in this regard and the detailed reply to which was given by the assessee. It is further noted that assessee has submitted the conformation from M/s Richie Rich, copy of acknowledgement, income tax return of M/s Richie Rich and copy of ledger account in the course of original assessment. Ld. Commissioner of Income Tax (A) has further found that audit report in this case contained the detail of all loans are appearing. From this we agree with the Ld. Commissioner of Income Tax (A) that the above duly establishes that the Assessing Officer in the original assessment had a clear and detailed occasion to consider this issue which has now been made subject matt....