M/s. Shubhda Impex Pvt. Ltd., Gurgaon V. ITO, New Delhi

ITA 1210/DEL/2010

• Counselvise Citation: 121020114 RSA 2010
• Duration Of Justice: 4 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 26-08-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained cash credit; Difference of opinion; Accommodation entries; Onus to prove; Reason to believe; Change of opinion
• Section: 143(3); 234B; 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI H.S. SIDHU : JUDICIAL MEMBER ITA NO. 1210/DEL/2010 ASSTT. YR: 2001-02 SHUBHDA IMPEX PVT. LTD., VS. INCOME-TAX OFFICER, C/O SHRI SIDARTH GUPTA WARD 9(1), NEW DELHI. P-10/2, DLF CITY, PHASE-I, GURGAON. PAN: AAECS 6714 L ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI SALIL AGGARWAL ADV. & SHRI SHAILESH GUPTA ADV. RESPONDENT BY : SHRI RAKESH KUMAR SR. DR DATE OF HEARING : 25/28-08-2014 DATE OF ORDER : 03-09-2014. O R D E R PER S.V. MEHROTRA, A.M:- THIS APPEAL, PREFERRED BY THE ASSESSEE, IS DIRECT ED AGAINST THE ORDER DATED 5-1-2010 PASSED BY THE LD. CIT(A)-XI, NEW DEL HI, IN APPEAL NO. 215/08-09, RELATING TO A.Y. 2001-02. 2. BRIEF FACTS OF THE CASE ARE THAT THE ORIGINAL RE TURN OF INCOME WAS FILED BY THE ASSESSEE, DECLARING TOTAL INCOME OF RS. 1,45 ,130/-ON 25-10-2001 AND THE ASSESSMENT U/S 143(1) WAS COMPLETED AT THE RET URNED INCOME ON 27-2- 2004. SUBSEQUENTLY, ASSESSING OFFICER REOPENED THE ASSESSMENT U/S 147 ON 7- 12-2007 AND THE ASSESSMENT WAS COMPLETED AT AN INCO ME OF RS. 3,95,130/-. THEREAFTER, ASSESSING OFFICER RECEIVED INFORMATION FROM ADDL. DIT(INV.), ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 2 NEW DELHI THAT ASSESSEE HAD INTRODUCED RS. 5,00,000 /- AND RS. 2,50,000/- FROM M/S SHEKHWATI FINANCE PVT. LTD. AND M/S DINANA TH LUHARIWAL SPINNING MILLS PVT. LTD. RESPECTIVELY THROUGH ACCOM MODATION ENTRY IN ITS BOOKS OF A/C. ON THE BASIS OF THIS INFORMATION, AFT ER RECORDING REASONS AND OBTAINING APPROVAL OF CIT(III), NEW DELHI, THE CASE WAS REOPENED VIDE ISSUE OF NOTICE U/S 148 DATED 31-3-2008. 2.1. A COPY OF REASONS RECORDED FOR REOPENING OF TH E CASE WAS SUPPLIED TO THE ASSESSEE VIDE ORDER-SHEET ENTRY DATED 4-6-2008 . AS THE ASSESSEE FAILED TO DISCHARGE THE ONUS TO PROVE ITS STAND AND FAILED TO PRODUCE THE PARTIES FOR VERIFICATION, THE ASSESSING OFFICER MADE ADDITION O F RS. 7,50,000/-. 2.2. BEFORE LD. CIT(A), THE ASSESSEE, INTER ALIA, T OOK A GROUND, WHETHER THE ASSESSING OFFICER COULD LAWFULLY ASSUME JURISDICTIO N TO REOPEN THE ASSESSMENT U/S 147 OF THE ACT ON THE GROUND THAT INITIALLY THE ASSESSMENT WAS MADE U/S 143(3) AND MORE THAN 4 YEARS HAD ELAPSED FROM THE E ND OF THE ASSESSMENT YEAR AND, THEREFORE, IN TERMS OF PROVISO TO SECTION 147, SUCH REOPENING COULD ONLY BE DONE, IF THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS, NECESSARY FOR T HE ASSESSMENT, IN THAT YEAR. THE ASSESSEE HAD ALSO RELIED ON VARIOUS CASE LAWS I N SUPPORT OF HIS SUBMISSIONS AND SUBMITTED THAT 147 HAD BEEN TAKEN O N MERE CHANGE OF OPINION. 2.3. LD. CIT(A) DID NOT ACCEPT THE ASSESSEES CONTE NTION, INTER ALIA, OBSERVING THAT, IN THE RETURN, ASSESSEE HAD NOT SHO WN SUCH AMOUNT RECEIVED FROM SFPL & SDLSMPL. THIS POINT WAS NEVER BEING A P ART OF THE ORDER U/S 143(3) AND IT ESCAPED THE ATTENTION OF THE ASSESSIN G OFFICER. HE FURTHER OBSERVED THAT ASSESSING OFFICER HAD MATERIAL FOR FO RMING THE BELIEF THAT THE ASSESSEE HAD NOT DISCLOSED RS. 7,50,000/- AS UNDISC LOSED INCOME FROM SFPL & SDLSMPL. HE FURTHER OBSERVED THAT ASSESSING OFFIC ER COULD PRIMA FACIE ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 3 FORM SUCH A BELIEF FROM THE MATERIAL AVAILABLE ON R ECORD. THUS, IN SUM AND SUBSTANCE, THE LD. CIT(A) CONCLUDED THAT THERE WAS OMISSION OR FAILURE ON THE PART OF THE ASSESSEE IN DISCLOSING FULLY AND TRULY THE CORRECT FACTS AND THE INCOME HAD ESCAPED ASSESSMENT. THE DECISION OF THE ASSESSING OFFICER COULD NOT BE FAULTED. HE, ACCORDINGLY, UPHELD THE INITIAT ION OF PROCEEDINGS U/S 147. 2.4. ON MERITS, LD. CIT(A), AFTER CONSIDERATION OF VARIOUS CASE LAWS, CONFIRMED THE ADDITION. 3. BEFORE US, THE ASSESSEE HAS RAISED FOLLOWING GRO UNDS OF APPEAL: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS. 7,50,000/- REPRESENTING SHARE CAPITAL RECEIVED BY T HE APPELLANT AND HELD TO BE ALLEGED UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT IN AN ORDER OF ASSESSMENT UNDER SECTION 147/143(3) OF THE ACT D ATED 5.1.2010. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE INITIATIO N OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AND ASSESSMENT FRAMED UNDER SECTION 147/143(3) OF THE ACT WITHOUT APPRECIATING THAT THE SAME WERE WIT HOUT JURISDICTION AND THEREFORE, DESERVED TO BE QUASHED AS SUCH. 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS FAILED TO APPRECIATE THAT SINCE IN THE REASONS RECO RDED, THERE WAS NO ALLEGATION THAT THERE IS FAILURE ON THE PART OF THE APPELLANT TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSE SSMENT AND, NOTICE UNDER SECTION 147 OF THE ACT HAD BEEN ISSUED AFTER A PERI OD OF FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR, INITIATION OF PROCE EDINGS WAS WITHOUT JURISDICTION IN TERMS OF PROVISO TO SECTION 147 OF THE ACT AND THEREFORE, THE SAME WAS ILLEGAL, INVALID AND HENCE VOID AB-INITIO. 2.2 THAT THE LEARNED COMMIS~IONER OF INCOME TAX (AP PEALS) HAS FAILED TO APPRECIATE THAT THERE WAS NO MATERIAL ON RECORD WHICH ENABLED THE LEARNED OFFICER TO HAVE REASON TO BELIEVE THAT INCO ME OF THE APPELLANT HAD ESCAPED ASSESSMENT AND THEREFORE, EVEN OTHERWISE, A SSUMPTION OF JURISDICTION WAS NOT IN ACCORDANCE WITH LAW AND HEN CE UNTENABLE. 2.3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) IN UPHOLDING THE ILLEGALITY OF THE PROCEEDINGS, HAS OV ERLOOKED THE VARIOUS CONTENTIONS RAISED BY THE APPELLANT AND HAS PROCEED ED ON SURMISES, CONJECTURES AND SUSPICION AND AS SUCH, THE FINDINGS SO RECORDED ARE ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 4 ARBITRARY, CONTRARY TO FACTS ON RECORD, LEGALLY UNS USTAINABLE AND THUS UNWARRANTED. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS FURTHER ERRED BOTH IN LAW AND NO FACTS IN SUSTAININ G THE ADDITION OF RS. 7,50,000/REPRESENTING SHARE CAPITAL RECEIVED BY THE APPELLANT COMPANY AND HELD TO BE UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. 3.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) WHILE CONFIRMING THE IMPUGNED ADDITION, HAS FAILED TO APP RECIATE THAT APPELLANT HAS LED ALL THE DOCUMENTARY EVIDENCE TO DISCHARGE T HE BURDEN WHICH LAY UPON IT UNDER SECTION 68 OF THE ACT. 3.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS FAILED TO APPRECIATE THAT MERE FACT THAT PARTIES FR OM WHOM, SHARE CAPITAL RECEIVED HAS NOT BEEN PRODUCED IN THE COURSE OF ASS ESSMENT PROCEEDINGS, COULD NOT BE A GROUND TO HOLD THAT IDENTITY, CREDIT WORTHINESS OF THE SUBSCRIBER AND GENUINENESS OF THE TRANSACTION HAD N OT BEEN ESTABLISHED BY THE APPELLANT. 3.3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS FURTHER FAILED TO APPRECIATE THAT, THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS. LOVELY EXPORTS REPORTED IN 216 CTR 195 W HEREIN IT HAS BEEN HELD THAT, EVEN IF SHARE CAPITAL RECEIVED BY THE AP PELLANT IS FROM THE ALLEGED BOGUS SHAREHOLDERS THEN TOO, NO ACTION CAN BE TAKEN AGAINST THE APPELLANT AND THEREFORE, ADDITION SO CONFIRMED IS APPARENTLY UNSUSTAINABLE. 3.4 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS FAILED TO APPRECIATE THAT IN ABSENCE OF ANY EVIDENC E LED BY THE LEARNED AO TO ESTABLISH THAT MONEYS SO RECEIVED AS SHARE CAPIT AL FROM THE SHAREHOLDERS AROSE FROM THE COFFERS OF THE APPELLANT, THE SAME C OULD NOT HAVE BEEN ASSESSED TO TAX AS UNEXPLAINED CASH CREDIT UNDER SE CTION 68 OF THE ACT IN TERMS OF JUDGMENT OF DELHI HIGH COURT IN THE CASE O F CIT V VALUE CAPITAL SERVICES LTD REPORTED IN 307 ITR 334. 3.5 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN. NOT APPR ECIATING THE DETAILED WRITTEN SUBMISSION ALONG WITH JUDICIAL PRONOUNCEMEN TS RELIED UPON BY THE APPELLANT AND INFACT, PROCEEDED TO RELY UPON THE JU DGMENTS WHICH ARE WHOLLY INAPPLICABLE TO THE FACTS OF THE INSTANT CAS E. 3.6 THAT THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVYING O F INTEREST UNDER SECTION 234B OF THE ACT WHICH IS NOT LEVIABLE AT ALL. ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 5 4. GROUND NOS. 1 TO 2.3 DEAL WITH THE LEGALITY OF I NITIATION OF PROCEEDINGS U/S 147. 5. LD. COUNSEL, AFTER NARRATING THE FACTS, REFERRED TO PAGES 10 & 11 OF THE PB, WHEREIN THE REASONS RECORDED FOR ISSUANCE OF NO TICE U/S 148 ARE CONTAINED, WHICH READ AS UNDER: INFORMATION IS RECEIVED FROM THE ITO WARD 9(2), NE W DELHI, THAT THE ASSESSEE HAS INTRODUCED RS. 7,50,000/- THR OUGH BOGUS & UNCONFIRMED CASH ACCOMMODATION ENTRIES IN ITS BOO KS OF ACCOUNTS ON 05-03-2001 FROM M/S SEKHAWATI FINANCE P . LTD. AND M/S DINANTH LUHARIWALA SPINNING MILLS P. LTD. 5.1. LD. COUNSEL FURTHER REFERRED TO PAGE 15 OF THE PB, WHEREIN LETTER DATED 27-5-2008 IS CONTAINED AND POINTED OUT THAT I N THE SAID LETTER THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO JUSTIFY THE GENUINENESS OF THE TRANSACTION MADE WITH M/S SHEKHAWATI FINANCE PVT. L TD. FOR RS. 5,00,000/-; AND WITH M/S DINANATH LUHARIWAL SPINNING MILLS PVT. LTD. ON 5-3-2001 FOR RS. 2,50,000/-. HE FURTHER POINTED OUT THAT IN THE SAID LETTER THE ASSESSING OFFICER OBSERVED THAT THIS MAY BE TAKEN AS REASONS FOR REOPENING THE CASE U/S 148 OF THE IT ACT. WITH REFERENCE TO THIS LETTER, L D. COUNSEL SUBMITTED THAT MAIN OBJECT OF ASSESSING OFFICER WAS TO MAKE FISHI NG AND ROVING INQUIRIES IN RESPECT OF CONCLUDED ASSESSMENT. HE FURTHER POINTED OUT THAT IN THE REASONS RECORDED, THERE IS NO WHISPER REGARDING NON-DISCLOS URE OF ANY INFORMATION BY THE ASSESSEE, WHICH WAS NECESSARY IN VIEW OF THE PR OVISO TO SEC. 147. HE SUBMITTED THAT THERE IS NO ALLEGATION OR WHISPER OR FINDING IN THE REASONS RECORDED THAT THERE IS ESCAPEMENT OF INCOME ON ACCO UNT OF FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIA L FACTS. LD. COUNSEL FOR THE ASSESSEE HAS RELIED ON FOLLOWIN G DECISIONS: - CIT V. VINIYAS FINANCE & INVESTMENT (P) LTD. [2013] 33 TAXMANN.COM 86 (DEL.); ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 6 - SHIVALIK BINETAL CONTROLS LTD. V. ITO IN WP(C) NO. 7087/2012. - E.I. DUPONT INDIA P. LTD. V. DCIT IN WP(C) NO. 4507 /2012. - RURAL ELECTRIFICAITON CORPN. LTD. V. CIT 355 ITR 35 6. - CIT VS. SUREN INTERNATIONAL (P) LTD. IN ITA NO. 289 /2012. - SHRI AMARLAL BAJAJ V. ACIT IN ITA NO. 611/2004. 5.2. HE SUBMITTED THAT, IN ALL THE CASES, IT HAS BE EN HELD THAT BEYOND FOUR YEARS NOTICE U/S 148 CAN BE ISSUED, IN CASE OF ASS ESSMENT COMPLETED U/S 143(3), ONLY IF THERE WAS FAILURE ON THE PART OF TH E ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS, NECESSARY FOR ASSESS MENT. IT IS TO BE SHOWN THAT THE ESCAPEMENT OF INCOME WAS A RESULT OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS, NEC ESSARY FOR REASSESSMENT AND THIS SHOULD BE REFLECTED IN THE REASONS RECORDED BY ASSESSING OFFICER. 5.3. LD. COUNSEL RELIED ON THE DECISION IN THE CASE OF CIT VS. VINIYAS FINANCE & INVESTMENT (P) LTD. [2013] 33 TAXMANN.COM 86 (DEL.). IN THIS CASE THE HONBLE HIGH COURT, ON GOING THROUGH THE P URPORTED REASONS, OBSERVED THAT THERE WAS NO MENTION OF THE ASSESSEE NOT HAVING MADE FULL AND TRUE DISCLOSURE OF THE MATERIAL FACTS, NECESSARY FO R ASSESSMENT. ON THE CONTRARY, IT WAS FOUND THAT PURPORTED REASONS INDIC ATED THAT THE AMOUNTS MENTIONED THEREIN HAD BEEN SHOWN IN THE BOOKS OF A/ C AS RECEIPTS FROM THE COMPANIES, MENTIONED THEREIN. IT WAS ALSO NOTICED T HAT AT SL. NO. 5 OF THE LIST OF COMPANIES, FROM WHICH AMOUNTS HAD BEEN ALLEGEDLY RECEIVED, THE NAME OF THE ASSESSEE HAD BEEN SHOWN. FROM THIS, HONBLE HI GH COURT CONCLUDED THAT THERE COULD HARDLY BE ANY ALLEGATION THAT THE ASSES SEE RECEIVED MONEY FROM BUSINESS. ACCORDINGLY, IT CONCLUDED THAT THE TRIBUN AL WAS JUSTIFIED IN HOLDING THAT THE ISSUANCE OF NOTICE U/S 148 WAS BAD IN LAW. ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 7 5.4. LD. COUNSEL FURTHER RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. SUREN INTERNATIONAL P. LTD. [2013] 357 ITR 24 (DEL.), WHEREIN IT HAS BEEN HELD THAT, INCASE OF NO TICE ISSUED U/S 148 AFTER 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, IN ADDITION TO THE ASSESSING OFFICER HAVING REASON TO BELIEVE THAT ANY INCOME HAD ESCAPED ASSESSMENT, IT MUST ALSO BE ESTABLISHED THAT THE IN COME HAD ESCAPED ASSESSMENT ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY THE NECESSARY MATERIAL FACTS. IF DETAILED INQUIRY HAD BEEN MADE AT THE TIME OF ASSESSMENT WITH REGARD TO THE IDENTITY AND CREDITWORTHINESS OF THE SHARE-APPLICANTS AND THE GENUINENESS OF THE TRANSAC TIONS IN RELATION TO THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE WA S ESTABLISHED, THEN, ON MERE STATEMENT THAT THE DEPARTMENT OF REVENUE, INTE LLIGENCE HAD SEIZED CERTAIN GOODS OF THE ASSESSEE AND LEVIED A PENALTY ALSO COULD NOT BE STATED TO BE A REASON FOR REOPENING OF ASSESSMENT OF THE ASSE SSEE AS THE STATEMENT MADE WAS NEITHER FOLLOWED BY THE RECORDING OF A BEL IEF THAT THE INCOME ESCAPED ON THAT COUNT OR THAT THE ASSESSEE HAD FAIL ED TO DISCLOSE ALL RELEVANT MATERIAL, FULLY AND TRULY, AT THE STAGE OF THE FIRS T ASSESSMENT. ACCORDINGLY, IT WAS HELD THAT NOTICE OF REASSESSMENT WAS NOT VALID. 5.5. LD. COUNSEL FURTHER REFERRED TO PAGE 30 OF THE PB, WHEREIN THE WRITTEN SUBMISSIONS, FILED BEFORE CIT(A), DATED 6-3-2009, A RE CONTAINED, IN WHICH, IN PARA 7 IT WAS STATED THAT ALL THE RELEVANT INFOR MATION AND DOCUMENTS ETC., RELATING TO THE INVESTMENTS MADE, INTER ALIA, BY BO TH THE ABOVE MENTIONED SHAREHOLDER COMPANIES FOR SUBSCRIPTION AND ALLOTMEN T OF SHARES OF RS. 5,00,000/- IN THE NAME OF M/S SHEKHWATI FINANCE PVT . LTD. AND OF RS. 2,50,000/- IN THE NAME OF M/S DINANATH LUHARIWAL SP INNING MILLS PVT. LTD., WERE FILED AT THE TIME OF ORIGINAL SCRUTINY ASSESSM ENT U/S 143(3) DATED 27-02- 2004 AND THEY WERE AVAILABLE ON RECORD. NO OBJECTIO NS WERE MADE AT THE ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 8 TIME OF ORIGINAL ASSESSMENT AND WERE, ACCORDINGLY, ACCEPTED AS SUFFICIENT AND GENUINE AND NO ADDITION, WHAT-SO-EVER, WAS MADE BY THE THEN ASSESSING OFFICER AT THAT TIME. THE DOCUMENTS FILED INCLUDED CONFIRMATIONS GIVING NAMES, ADDRESSES, SOURCE OF AMOUNTS, PA NUMBER, BAN K STATEMENTS SHOWING ENCASHMENT OF CHEQUES, THE ASSESSEE COMPANYS BANK STATEMENT SHOWING DEPOSITS OF SUCH CHEQUES AND COPY OF THE LIST OF TH E SHAREHOLDERS AS ON 31- 03-2001, FILED BY THE ASSESSEE WITH THE ROC. HE, TH EREFORE, SUBMITTED THAT DUE INQUIRIES WERE MADE AT THE TIME OF ASSESSMENT. 5.6. LD. COUNSEL FURTHER REFERRED TO PAGES 10 & 11 OF THE PB, WHEREIN THE REASONS RECORDED BY THE ASSESSING OFFICER ARE CONTA INED AND POINTED OUT THAT ASSESSING OFFICER ITSELF HAS NOTED THAT FIGURES WER E THERE IN THE BOOKS OF A/C ON 5-3-2008. 6. LD. DR RELIED ON THE ORDER OF CIT(A) AND SUBMITT ED THAT ASSESSING OFFICER HAD REASON/ TANGIBLE INFORMATION, HAVING DI RECT NEXUS WITH THE FORMATION OF BELIEF REGARDING ESCAPEMENT OF INCOME. HE SUBMITTED THAT AT THE TIME OF RECORDING OF REASONS, ONLY PRIMA FACIE BELIEF OF ASSESSING OFFICER IS RELEVANT AND THE SUFFICIENCY OF REASONS CANNOT B E EXAMINED AT THAT STAGE. FOR THIS PROPOSITION, LD. DR RELIED ON THE DECISION S IN THE CASES OF CALCUTTA DISCOUNT CO. LTD. VS. ITO 41 ITR 191(SC); AND PHOOL CHAND BAJRANGLAL & ANOTHER VS. ITO & ANOTHER 203 ITR 456 (SC). 6.1. LD. DR SUBMITTED REASONS HAVE TO BE READ AS A WHOLE AND THAT REALLY LEADS TO THE CONCLUSION THAT THERE WAS ESCAPEMENT O F INCOME. HE SUBMITTED THAT IT IS NOT NECESSARY THAT SPECIFIC WORDS SHOULD BE THERE IN THE REASONS RECORDED REGARDING ESCAPEMENT OF INCOME OR NON-DISC LOSURE OF FULLY AND TRULY ALL MATERIAL FACTS, NECESSARY FOR ASSESSMENT. ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 9 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE RECORD OF THE CASE. THERE IS NO DISPUTE THAT ASSESSEES CASE FALLS WITHIN THE PROVISO TO SECTION 147 BECAUSE ASSESSMENT HAD BEEN COMPLETED U /S 143(3) AND THE REOPENING HAS BEEN MADE AFTER 4 YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR. THE LAW IS WELL SETTLED THAT ON A MERE CHANGE OF OPINION ON THE SAME SET OF FACTS, THERE CAN NOT BE ANY REOPENING. IN OR DER TO CLOTHE WITH THE JURISDICTION OF REOPENING TO ASSESSING OFFICER AFTE R FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, THERE SHOULD BE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS, NEC ESSARY ASSESSMENT. MERE ESCAPEMENT OF INCOME IS NOT SUFFICIENT, BUT IT SHOU LD BE COUPLED WITH THE OMISSION ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. NO DOUBT, ONCE THE INFORMATION HAS BEEN RECEIVED BY ASSESSING OFFICER REGARDING ACCOMMODATION ENTRIES BEING TAKEN BY ASSE SSEE FROM THE INVESTIGATION WING, THEN HE HAS NO COURSE OF ACTION OPEN EXCEPT TO RESORT TO THE PROVISIONS OF SECTION 147. HOWEVER, IN CASE OF ASSESSMENT COMPLETED U/S 143(3) AFTER FOUR YEARS, MERE ESCAPEMENT OF INCOME, CANNOT GIVE JURISDICTION TO HIM TO REOPEN THE ASSESSMENT. THE REASONS RECORD ED BY ASSESSING OFFICER HAVE TO BE EXAMINED TO FIND OUT WHETHER THE MANDAT E OF PROVISO TO SECTION 147 IN SUCH CASES HAVE BEEN MET OR NOT. UNLESS THE ASSESSING OFFICER DEMONSTRATES IN THE REASONS RECORDED THAT THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY, ALL MATERIAL FACTS, NECESSARY FOR ASSESSMENT, THE REOPENING CANNOT BE JUSTIFIED UNDER LAW. THE POSITION OF LAW ON THIS ISSUE IS ADUMBRATED IN THE DECISIONS RELIED UPON BY LD. COUNSEL FOR THE ASSESSEE NOTED EARLIER. 7.1. IN THE BACKDROP OF ABOVE LEGAL POSITION, WE NO W PROCEED TO EXAMINE THE REASONS RECORDED IN THE PRESENT CASE. THE REASO NS RECORDED FOR REOPENING OF ASSESSMENT ARE AS UNDER: ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 10 INFORMATION IS RECEIVED FROM THE ITO WARD 9(2), NE W DELHI, THAT THE ASSESSEE HAS INTRODUCED RS. 7,50,000/- THR OUGH BOGUS & UNCONFIRMED CASH ACCOMMODATION ENTRIES IN ITS BOO KS OF ACCOUNTS ON 05-03-2001 FROM M/S SEKHAWATI FINANCE P . LTD. AND M/S DINANTH LUHARIWALA SPINNING MILLS P. LTD. 7.2. FROM THE ABOVE REASONS RECORDED, IT IS EVIDENT THAT THE ASSESSING OFFICER HAS NO WHERE STATED IN THE REASONS RECORDED THAT THE ESCAPEMENT OF INCOME WAS ON ACCOUNT OF FAILURE ON THE PART OF ASS ESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. 7.3. IN THE CASE OF VINIYAS FINANCE & INVESTMENT (P) LTD. (SUPRA), FOLLOWING REASONS WERE RECORDED: 6. IN THE PRESENT CASE THE PURPORTED REASONS TO BEL IEVE THAT INCOME HAD ESCAPED ASSESSMENT WERE AS UNDER:- REASONS OF THE BELIEF THAT INCOME HAS ESCAPED ASSESSEMNT. IN THIS CASE THE ASSESSMENT FOR THE ASSTT. YEAR 2002-03 WAS MADE U/S 14(3) ON 22.12.2004. A SPECIAL INFORMATION HAS BEEN RECEIVED FROM DIRECTOR OF INCOME TAX (INVESTIGATION)-I, NEW DELHI VIDE LETTER DATED 05.02.2007 THAT THE ASSESSEE COMPANY HAS RECEIVED A SUM OF RS.77,00,000/-FROM THE COMPANIES AS DETAILED BELOW:- .. . 7. ACCORDING TO THE SPECIAL INFORMATION RECEIVED, T HE ENTRIES ARE IN THE NATURE OF ACCOMMODATION ENTRIES AND IN THE REAL ITY IT IS THE ASSESSEES OWN UNACCOUNTED MONEY WHICH HAS BEEN SHOWN IN THE B OOKS OF ACCOUNTS AS A RECEIPT FROM AFORESAID COMPANIES. IN VIEW OF T HE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME TO THE EXTENT OF RS.77,00,00 0/- HAS ESCAPED ASSESSMENT. 7.4. THUS, THE REASONS RECORDED IN THE PRESENT CASE ARE ALMOST SIMILAR TO THE REASONS RECORDED IN THE CASE OF VINIYAS FINANCE & I NVESTMENT (P) LTD. (SUPRA). CONSIDERING THE FACT THAT ASSESSEE HAD FIL ED ALL THE DETAILS IN REGARD TO THE LOANS IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3), WHICH WERE EXAMINED BY ASSESSING OFFICER, THE ESCAPEMENT CANNO T BE SAID TO BE ON ACCOUNT OF FAILURE ON THE PART OF ASSESSEE TO DISCL OSE FULLY AND TRULY ALL MATERIAL FACTS, NECESSARY FOR ASSESSMENT. ITA 1210/DEL/2010 SHUBHDA IMPEX PVT. LTD. 11 7.5. IN VIEW OF ABOVE DISCUSSION, RESPECTFULLY FOLL OWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF VINIYAS FIN ANCE & INVESTMENT (P) LTD. (SUPRA) AND ALSO THE DECISION IN THE CASE OF S UREN INTERNATIONAL P. LTD. (SUPRA), WE HOLD THAT IN THE PRESENT CASE, THE REOP ENING OF ASSESSMENT PROCEEDINGS, INITIATED BY THE ASSESSING OFFICER U/S 147 ARE BAD IN LAW. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 03-09-2014. SD/- SD/- ( H.S. SIDHU ) ( S.V. MEHROTRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03-09-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR