TaxTMI 
TaxTMI 
2021 (10) TMI 232
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....sesse is null and void on the ground that the said proceedings are initiated based on the same set of information as was available at the time of original assessment proceedings and therefore it amounts to mere change of opinion even when the re-assessment proceedings are initiated n the basis of the incriminating documents collected during survey and belief for re-opening the assessment is based on the tangible materials and the all the ingredients for initiating re assessment proceedings under section 147 are satisfied in the case of the assessee? (ii) Whether on the facts and circumstances of the case, the Tribunal's order can be said as perverse in nature as the Tribunal has failed to apply the principle laid down by Apex Court in case M/s. Ess Kay Kay Engg Co. V/s CIT (reported in 247 ITR page 818) and Phool chand Bajrang Lal V/s ITO (reported in 203 ITR page 456)? 2. Facts leading to filing of this appeal briefly stated are that assessee is a company which is engaged in the business of manufacture and export of garments. The assessee filed the return of income for the Assessment Year 2005-06 on 31.10.2005. The return filed by the assessee was selected f....
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....provided the Assessing Officer had reason to believe that any income chargeable to tax had escaped assessment. It is further submitted that the assessment as re-opened on the basis of survey conducted under Section 133A of the Act for Assessment Year 2006-07 and the finding recorded by the tribunal is contrary to the reasons recorded by the Assessing Officer. It is also submitted that even if a detailed scrutiny is conducted, the power of Assessing Officer to issue notice under Section 147 of the Act is not taken away and tangible material need not be in the form of documentary evidence only. It is also submitted that order of the tribunal is contrary to law laid down by Supreme Court. In support of aforesaid submissions, reliance has been placed on decisions in 'KALYANJI MAVJI & CO. VS. COMMISSIONEROF INCOME-TAX', (1976) 102 ITR 287 (SC), 'INDIAN & EASTERN NEWSPAPER SOCIETY VS. COMMISSIONER OF INCOME-TAX', (1979) 2 TAXMAN 197 (SC), 'A.L.A.FIRM VS. COMMISSIONER OF INCOME-TAX', (1991) 55 TAXMAN 497 (SC), 'ASSISTANT COMMISSIONER OF INCOME-TAX VS. RAJESH JHAVERI STOCK BROKERS (P.) LTD.', (2007) 161 TAXMAN 316 (SC), 'NEW DELHI TELEVISION LTD. VS. DEP....
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....riginal assessment; (4) Where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law." If these conditions are satisfied then the Income Tax Officer would have complete jurisdiction to reopen the original assessment. It is obvious that where the Income Tax Officer gets no subsequent information, but merely proceeds to reopen the original assessment without any fresh facts or materials or without any enquiry into the materials which form part of the original assessment, Section 34(1)(b) would have no application." If these conditions are satisfied then the Income-Tax Officer would have complete jurisdiction to reopen the original assessment. It is obvious that where the Income-Tax Officer gets no subsequent information, but merely proceeds to reopen the original assessment without any fresh facts or materials or without any enquiry into the materials which form part of the original assessment, Section 34(1)(b) would have no application. 8. A Full Bench of this Court in 'DELL INDIA PVT. LTD. Vs. JOINT COMM....
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....ely M/s South Elegant Limited, Hong Kong as per the Service Agreement entered into between the assessee company and M/s South Elgant Limited dated 01.07.2002. During the course of post survey proceedings statement of the Managing Director of the company Shri Anupam Kothari was recorded and was asked to substantiate this agreement and payments made in pursuance to this agreement and it is found that the reply of the Managing Director to most of the queries were evasive in nature and surprisingly, to quote a few, he could not substantiate with whom from South Elegant he had interacted or even to say where this deal was entered into and when. Surprisingly this service agreement was cancelled on 26.10.2005 though it was made for a period upto 2012 and the so called termination is done again through a three line letter and huge sum running into tens of crores rupees has been paid by the assessee company towards termination fee. The genuineness of this Info Trekking and Delivery schedule expenditure was not proved by the assessee to the satisfaction of the Assessing Officer and even the assessee could not prove the legality of this document as the document in question was a plaint she....