TaxTMI 
TaxTMI 
2024 (3) TMI 104
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.... 3. By the Impugned Order dated 10.01.2020, the first respondent has justified the reopening of the assessment for the Assessment Year 2014-2015 with the following observation:- "2. The first objection of the assessee is that reopening without fresh material is invalid. Fresh material is available in this case in the form of the order of the Hon'ble Subrement Court passed on 24.10.2013 wherein Service tax refund of Rs. 77.80 Crores was determined. Therefore, the objection of the assessee is not valid. 3. Another objection raised by the assessee is that there is change of opinion. In this connection, it is to be noted that there is no discussion about the accessibility of the amount of Rs. 77.80 crores in any of the proceedings. The only discussion was in the course of assessment for AY 2015-16 wherein the assessee's claim of reduction of the refund amount from income admitted during the search was rebutted. The rebuttal was for the reason that the issue of service tax refund was never a subject matter at the time of admission of income and the admission was made on account of account of returned or unsold paper lottery tickets. Thus the claim of the assessee....
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....Year 2015-2016. 5. In W.P.No.16497 of 2021, the petitioner has challenged the Impugned Order dated 16.07.2021 passed by the first respondent disposing of the objection of the petitioner against reopening of the assessment for the assessment year 2015-2016 vide notice dated 23.03.2020 issued under Section 148 of the IT Act, 1961 for the Assessment Year 2015-2016. 6. By the Impugned Order dated 16.07.2021, the first respondent has justified the reopening of the assessment with the following observation:- "2. The first objection of the assessee is that reopening has been made without any fresh material. Fresh material was available in this case in the form of the order of the Hon'ble Supreme Court passed on 24.10.2013, wherein, service-tax refund of Rs. 77.80 crores was determined. This Supreme Court order was relatable to the income admission for the asst. year 2015-16 of Rs. 200 crores. The omission in the income admission by the assessee of Rs. 200 crores over and above that in the certified accounts was not dealt in the asst. order, with reference to the Supreme Court order. Therefore, this objection of the assessee is not valid. 3. The next objection r....
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....sion to tax the amount of Rs. 200 crores offered in the course of search as over and above the certified accounts, and the already taxed amount of Rs. 80 crores has no connection with the certified accounts. 8. Another objection made by the assessee was that the satisfaction of the JCIT was mechanical. In this connection, it may be noted that the statutory requirement being approval of the Range head is met. Further, with regard to the satisfaction, it has been recorded by the Range head that 'perused the reasons recorded by the AO and materials available on record. It is found that Rs. 119.46 crores escapes assessment. Satisfied with the reasons recorded by the AO. Approved. From the above recording, it may be apparent that the approval was not mechanical but on an objective basis. In this connection, it may also be noted that already additional Income of Rs. 80.54 crores was added to the total income in the assessment order out of the declared amount during the search of Rs. 200 crores, resulting in the escapement of income of Rs. 119.46 crores. 9. In the light of the foregoing, the objections filed by the assessee against the reopening of assessment is disp....
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....assessment, instead of an addition of Rs. 200.00 crores, an addition of Rs. 80,53,26,740/- only was made on account of variation between the amount admitted during the course of search and the amount admitted in the return of income. The difference amount of Rs. 119,46,73,260/- has escaped assessment." 8. The petitioner is a company engaged in trading of sale of lotteries through online as well as through physical means. A search was conducted under Section 132 of the IT Act, 1961 on 20.11.2014 during the Financial Year 2014-2015. During the course of search, the petitioner has also given letters dated 09.01.2015, 16.01.2015 and 11.04.2016. 9. At the time of inspection, the Senior Executive of the petitioner gave a statement under Section 132(4) of the IT Act, 1961 and offered to add a sum of Rs. 203,00,00,000/- (Rupees Two Hundred and Three Crore Only) as taxable income of the entire group. 10. In letter dated 09.01.2015 addressed to the Deputy Director of Investigation, the petitioner stated and reiterated as follows:- "3. The said additional income will also include the income to be offered in the cases of Summit Online Trade Solutions Private Limited and Indiv....
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....t and to buy peace and to bring finality in the matter and to the queries and explanations not answered to the satisfaction of the department, we hereby agree to offer a sum of Rs. 203,00,00,000/- (Rupees Two Hundred and Three Crore Only) as additional income for the financial year 2014-2015 i.e. Assessment Year 2015- 2016 for the entire group." 16. These proceedings ultimately culminated in assessment orders dated 29.12.2017 under section 143(3) read with section 153A read with section 92CA(6) of the IT Act, 1961 for the respective assessment years. 17. The income that was returned and the income that was added to the respective assessment years and the tax payable by the petitioner as per the aforesaid assessment orders are detailed as under:- Assessment year 2014-2015 Assessment year 2015-2016 Income returned under section 139 of the Income Tax Act, 1961. Rs.153,79,75,580 Rs.2,76,87,85,099 Income determined in the respective assessment orders both dated 29.12.2017. Rs.154,05,70,928 Rs.354,80,61,440 Tax payable by the petitioner. Under the respective assessment orders both dated 29.12.2017. Rs.12,70,300 Rs.36,79,45,730 18. As fa....
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....efore the assessing officer could not hold the benefit of service tax refund accrued during the Assessment Year 2015-2016 automatically. 21. The Tribunal further observed that the petitioner had also given an undertaking before the assessing officer by way of an affidavit that on the actual receipt, tax will be offered and therefore the addition of rupees Rs. 77.80 Crores was not justified and thus allow the petitioner's appeal. As far as the balance amount of Rs. 2,73,26,740 [80,53,26,740 -77,80,00,000], the petitioner's appeal was dismissed. Relevant portion of the order held as under:- "4.2 If the Department is promted to bring to tax of the Service Tax Refund of Rs. 77.80 Crores in view of the decision of the Hon'ble Supreme Court which was delivered on 24.10.2013, the same should have been taxed in the relevant to the assessment year 2014-2015 or it can be taxed as and when the said sum or any part thereof is actually received by way of refund from the concerned authorities. In fact, it was the argument of the Id. Counsel that before completion of the assessment on 29.12.2017, the assessee has given an undertaking in the form of an affidavit dated 28.12.2017 to....
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....mpugned orders and notices have been issued seeking to reopen the assessment for the Assessment Year 2014-2015, the petitioner filed Return of Income on 27.09.2014 and admitted a total income of Rs. 153,79,75,580/-. The revised returns that was filed by the petitioner on 05.03.2016 after the statement was given on 09.01.2015. Revised return filed on 05.03.2016 for the Assessment Year 2014-2015 was contrary to the Letter dated 09.01.2015 and 16.01.2015. 23. The learned counsel for the petitioner has relied upon the following decisions:- i. Commissioner of Income-Tax, Delhi vs. Kelvinator of India Limited, [2010] 187 Taxman 312 (SC); ii. Commissioner of Income-Tax vs. Kelvinator of India Limited, [2002] 123 Taxman 433 (Delhi); iii. Calcutta Discount Company Limited vs. Income Tax Officer, [1961] 41 ITR 191 (SC); iv. Jindal Photo Films Limited vs. Deputy Commissioner of Income-Tax, [1999] 105 Taxman 386 (Delhi); v. Principal Commissioner of Income Tax-6, Chennai vs. Santech Solutions Private Limited, [2018] 97 taxmann.com 179 (Madras); vi. Sterlite Industries (India) Limited vs. Assistant Commissioner of Income Tax, [2009] 178 T....