AI Drafter 
TaxTMI 
TaxTMI 
2024 (10) TMI 262
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....responded to the said notice by a communication in writing dated 23rd February, 2024 and ultimately the above proceeding culminated in an assessment order dated 20th March, 2024, whereunder a sum of Rs.1,50,45,00,000/- was added back to the petitioner's income for the aforesaid Assessment Year on account of unexplained money under Section 69A of the said Act. 4. Mr. Majumder, learned senior advocate representing the petitioner, by drawing attention of this Court to the show cause notice and the assessment order submits that although, in the show cause notice the variation proposed indicated that the amount of Rs.1,50,45,00,000/-should be added back to the total income of the petitioner as unexplained cash credits under Section 68 of the said Act, however, despite the fact that the petitioner had explained the circumstances as to why such addition should not be made, the Faceless Assessing Unit by its order which is impugned in the present writ petition has added back the aforesaid amount as "unexplained money" under Section 69A of the said Act. By referring to the provisions of Section 68 and 69A of the said Act, it is submitted that the provisions stand independent of one anoth....
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....f the said Act. Records reveal that in the order of assessment, the Faceless Assessment Unit upon taking into consideration the explanation given by the petitioner has added back the aforesaid sum as unexplained money under Section 69A of the said Act. To more fully appreciate the contention of the petitioner that the provisions of Section 68 and 69A of the said Act are independent provisions, the same are extracted here in below:- "68. Cash credits.-Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income tax as the income of the assessee of that previous year. Provided that where the sum so credited consists of loan or borrowing or any such amount, by whatever name called, any explanation offered by such assessee shall be deemed to be not satisfactory, unless,- (a) the person in whose name such credit is recorded in the books of such assessee also offers an explanation about the nature and source of such....
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....ounts, if any, maintained by him for any source of income and in absence of any explanation about the nature and source of acquisition of the same or in absence of satisfactory explanation, the above would be deemed to be income of the assessee for such financial year. In this case although, the notice to show cause clearly identified that the amount proposed to be added back was by invoking the provisions of Section 68 of the said Act and the petitioner on such premise had responded to the same, the final assessment order was passed by treating the same to be an "unexplained money" under Section 69A of the said Act. 8. I find that the language used in Section 69A of the said Act clearly required the assessee to be afforded with an opportunity to explain. As such, even if the respondents were of the opinion that in this case Section 69A of the said Act ought to be invoked, in my view the respondents ought to have at least prior to passing of the assessment order granted an opportunity to the petitioner to explain as to why the aforesaid sum of Rs.1,50,45,00,000/-should not be added back as an unexplained money under Section 69A of the said Act. In absence of any notice, the peti....
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.... by surprise at the stage of rejection of its objections or at the state of proceedings before the High Court that the notice is to be treated as a notice invoking provisions of the second proviso of Section 147 of the Act. Accordingly, we answer the third question by holding that the notice issued to the assessee and the supporting reasons did not invoke provisions of the second proviso of section 147 of the Act and therefore at this stage the revenue cannot be permitted to take benefit of the second proviso. 44. We accordingly allow the appeal by holding that the notice issued to the assessee shows sufficient reasons to believe on the part of the assessing officer to reopen the assessment but since the revenue has failed to show non-disclosure of facts that notice having been issued after a period of 4 years is required to be quashed. Having held so, we make it clear that we have not expressed any opinion on whether on facts of this case the revenue could take benefit of the second proviso or not. Therefore, the revenue may issue fresh notice taking benefit of the second proviso if otherwise permissible under law. We make it clear that both the parties shall be at libert....