The ITO, Ward-3(1), Surat V. Shri Goyal Suresh, Surat

ITA 2106/AHD/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1458 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 31-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 21-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S B VAIDYA
• Keywords: Reason to believe; Reassessment proceedings
• Section: 143(3); 142(1); 139

Judgement Text

I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD D BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] I.T.A. NO. 210 6 /AHD/ 20 1 0 ASSESSMENT YEAR : 20 0 7 - 0 8 INCOME TAX OFFICER, WARD - 3(1), SURAT. . .. ......... . APPEL LANT VS. SURESH GOYAL, ..... ........ RESPONDENT PROP. O F M/S ASTHA EXIM, 501, DEV PRAYAG A PPT., CITY LIGHT ROAD, SURAT [ PAN: A ELPG 3110 J ] APPEARANCES BY: SANJAY AGARWAL , FOR THE APPELLANT S.B. VAIDYA , FOR THE RESPONDENT D ATE O F CONCLUDING THE HEARING : MAY 31 ST , 201 6 DATE OF PRONOUNCING THE ORDER : MAY 31 ST , 201 6 O R D E R PER PRAMOD KUMAR , AM : 1. THIS APPEAL, FILED BY THE REVENUE , CALLS INTO QUESTION CORRECTNESS OF THE ORDER DATED 31 ST MARCH, 2010 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 200 7 - 0 8 , ON THE FOLLOWING GROUNDS : - 1) ON THE FACTS AND CIRCUMSTANCE S OF THE CASE AND IN LAW, THE LD. CIT(A) H A S ERRED IN LAW IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF UNVERIFIABLE PURCHASES OF RS. 79,57,732 / - . 2) ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3) IT IS, THEREFORE, P R AY E D THAT THE ORDER OF THE CIT ( A ) MAY BE SET - ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 2 OF 8 2. WHEN THIS APPEAL WAS CALLED FOR HEARING, LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO HIS PETITION UNDER RULE 27 WHICH URGES US TO HOLD THAT THE REASSESSMENT ORDER AS BAD IN LAW. AS THIS ISSUE GOES TO THE ROOT OF THE MATTER, AND AS, IF THIS GRIEVANCE OF THE ASSESSEE IS UPHELD, ALL ISSUES RAISED BY THE APPELLANT WILL BE RENDERED ACADEMIC, WE ARE URGED TO ADJUDICATE ON THIS ISSUE FIRST. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT OPPOSE THIS COURSE OF ACTION. WITH THE CONSENT OF THE PARTIES, THEREFORE, WE TAKE UP THE ISSUE RAISED BY THE ASSESSEE FIRST. 3. IN SHORT, THIS GRIEVANCE IS RAISED ON THE GROUND THAT SINCE NO ADDIT ION WAS MADE BY THE ASSESSING OFFICER FOR THE REASONS FOR WHICH THE ASSESSMENT IS REOPENED, THE ASSESSING OFFICER OUGHT TO HAVE DROPPED THE REASSESSMENT PROCEEDINGS RATHER THAN PROCEEDING TO FRAME THE REASSESSMENT BY MAKING ADDITIONS ON CERTAIN OTHER ISSUE S. WE ARE TAKEN TH R OUGH THE REASONS FOR REOPENING THE ASSESSMENT WHICH ARE REPRODUCED BELOW FOR READY REFERENCE: REASONS R E CORDED FOR REOPENING THE ASSESSMENT U/S.147 OF THE I.T. ACT THE RETURN OF INCOME FOR THE A . Y . 200 7 - 08 WAS FILED ON 3 1 .10.200 7 W ITH RETURNE D INCOME AT RS. 3,52,360/ - . THIS OFFICE HA S RECEIVED MINUTES OF REIC MEE TING HELD ON 17.12.2008. THE FIRM M/S ASTHA EXIM WAS E NGAGED IN THE EXPORT AND TRADING OF GARMEN T S, ART SILK CLOTH AND WELDING RODS. THE ABOVE FIRM HA D EXPORTED DYED/PRINTED F ABRICS MADE FROM 100% POLYESTER FILAMEN T YAR N , METAL FILLED RUBBER/MOLDED DOOR BI DING, LADIES NIGHT WEAR ETC. TO VARIOUS OVERSEAS BUYERS AT OVERVALUED PRICES SO AS TO FRAUD ULENTLY AVAIL EXCESS DEPB BENEFITS AND OTH ER EXPORT INCENTIVE IN THE FORM OF REBA TE . THE CENTRAL EXCISE & CUSTOMS DEPARTMENT HAS RECOVERED REBATE C LAIM A S PER CENTRAL EXCISE ACT. TO VERIFY THE CLAIM OF REBATE AND THE EXPORTS FOR AVAILMENT OF DEPB, THE CASE IS REOPENED U/S 147 OF THE ACT. 4. IT IS THEN POINTED OUT THAT THERE IS NO ADD ITION IN RESPECT OF THE ABOVE ITEMS, IN RESPECT OF SALES AT OVERSTATED PRICES OR ANYTHING RELATED THERETO. IN THE COURSE OF THE REOPENED ASSESSMENT, THE ADDITION IS MADE ON ACCOUNT OF UNVERIFIABLE PURCHASES. I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 3 OF 8 LEARNED COUNSEL SUBMITS THAT SINCE NO ADDITIONS ARE MADE IN RESPECT OF THE REASONS RECORDED FOR REOPENING THE ASSESSMENT, IT IS NOT OPEN TO THE ASSESSING OFFICER TO MAKE ANY OTHER ADDITIONS EITHER. RELIANCE IS PLACED ON THE JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . JET AIRWAYS [(2011) 331 ITR 236 (BOM)]. WE ARE THUS URGED TO QUASH THE IMPUGNED REASSESSMENT ORDER FOR THIS SHORT REASON ALONE. 5. LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE STAND OF THE ASSESSING OFFICER. HE DID NOT HAVE MUCH TO SAY ON THE SPECIFIC PLEA TAKEN BY T HE ASSESSEE, BEYOND STATING THAT ONCE THE REASSESSMENT IS VALIDLY INITIATED, THERE IS NO BAR ON MAKING ANY ADDITIONS IN RESPECT OF ANY OF THE ESCAPED INCOME COMING TO THE NOTICE OF THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATE RIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 7. IT IS WELL SETTLED IN LAW THAT IN CASE AN ASSESSING OFFICER DOES NOT MAKE ANY ADDITIONS FOR THE REASONS RECORDED FOR REOPENING THE ASSESSMENT, IT IS NOT OPEN TO HIM TO MAKE ADDITIONS FOR ANY OTHER INCOME, OTHER THAN THE RECORDED IN THE REASONS, EITHER. OF COURSE, IF HE MAKES AN ADDITION IN RESPECT OF ANY OF THE REASONS RECORDED FOR REOPENING, HE MAY AS WELL MAKE ADDITIONS IN RESPECT OF OTHER INCOMES AS WEL L. HON BLE JURISDICTIONAL HIGH COURT HAS, IN THE CASE OF CIT VS MOHD JUNED DADANI [(2013) 355 ITR 172 (GUJ)], HAS OBSERVED AS FOLLOWS: 22. SECTION 147 OF THE ACT THUS, GIVES POWER TO THE ASSESSING OFFICER FOR REOPENING AN ASSESSMENT. SUCH POWERS, HOWEVER , ARE HEDGED WITH SEVERAL CONDITIONS. FIRST THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. FURTHER IF THE REOPENING IS RESORTED BEYOND THE PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESS MENT YEAR, ADDITIONAL REQUIREMENT THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY THE REASON OF FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE UNDER SECTION 142(1) OR 148 OF THE ACT OR TO DISCLOSE FULLY AND TRULY ALL I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 4 OF 8 MATERIAL FACTS NECESSARY FOR THE ASSESSMENT MUST ALSO BE SATISFIED. IF THE REQUIREMENTS OF GIVING JURISDICTION TO THE ASSESSING OFFICER TO REOPEN ASSESSMENT ARE SATISFIED, HE MAY ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THE SAID SECTION. 23. SECTION 147 OF THE ACT, EVEN WITHOUT THE AID OF EXPLANATION 3 THUS ENABLED THE ASSESSING OFFICER WHILE F RAMING AN ASSESSMENT UNDER SECTION 147 OF THE ACT, TO ASSESS OR REASSESS SUCH INCOME FOR WHICH HE HAD RECORDED HIS REASONS TO BELIEVE HAD ESCAPED ASSESSMENT AND ALSO ANY OTHER INCOME WHICH ESCAPED ASSESSMENT WHICH CAME TO HIS NOTICE SUBSEQUENTLY IN THE COU RSE OF THE ASSESSMENT PROCEEDINGS. 24. SANS EXPLANATION (3), SECTION 147 OF THE ACT, HOWEVER, BY NO STRETCH OF IMAGINATION, CAN BE CONSTRUED AS TO PROVIDE THAT IF THE REASON ON WHICH THE ASSESSMENT IS REOPENED FAILS, THE ASSESSING OFFICER STILL CAN PROCEE D TO ASSESS SOME OTHER INCOME WHICH ACCORDING TO HIM HAD ESCAPED ASSESSMENT AND WHICH CAME TO HIS LIGHT DURING THE COURSE OF THE ASSESSMENT. FOR ASSUMING JURISDICTION TO FRAME AN ASSESSMENT UNDER SECTION 147 OF THE ACT WHAT IS ESSENTIAL IS A VALID REOPENIN G OF A PREVIOUSLY CLOSED ASSESSMENT. IF THE VERY FOUNDATION OF THE REOPENING IS KNOCKED OUT, ANY FURTHER PROCEEDING IN RESPECT TO SUCH ASSESSMENT NATURALLY WOULD NOT SURVIVE. 25. A QUESTION MAY THEREFORE, ARISE WHETHER INTRODUCTION OF EXPLANATION (3) WOUL D CHANGE THIS POSITION AND FOR THAT PURPOSE WE NEED TO ASCERTAIN WHAT IS TRUE PURPORT OF EXPLANATION 3 AND THE PURPOSE FOR WHICH THE SAME WAS INTRODUCED. LET US HAVE A CLOSER LOOK TO SUCH EXPLANATION WHICH PROVIDES THAT FOR THE PURPOSE OF ASSESSMENT OR REA SSESSMENT UNDER THE SAID SECTION, THE ASSESSING OFFICER MAY ASSESS OR REASSESS THE INCOME IN RESPECT OF ANY ISSUE WHICH ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF REASSESSMENT PROCEEDINGS. THE EXPLANATION FURTHER PROVIDE S THAT THIS WOULD BE SO NOTWITHSTANDING THAT THE REASONS FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN THE REASONS RECORDED UNDER SECTION 148(2). 26. IF THE CONTENTION OF THE ASSESSEE THAT EVEN AFTER INTRODUCTION OF EXPLANATION 3 TO SECTION 147 OF THE ACT, THE SITUATION HAS NOT UNDERGONE ANY MATERIAL CHANGE IS ACCEPTED, THE QUESTION THAT IMMEDIATELY WOULD COME TO ONE S MIND IS, WHAT THEN WAS THE PURPOSE OF INTRODUCING SUCH AN EXPLANATION. AN ARGUMENT MAY ARISE THAT IF BEFORE AND AFTER INTRODUCTION OF EXPLANATIO N 3, THE NATURE OF JURISDICTION EXERCISED BY THE ASSESSING OFFICER WAS NOT TO UNDERGO ANY CHANGE, WOULD EXPLANATION 3 NOT BE RENDERED REDUNDANT. WOULD SUCH A SITUATION NOT RUN COUNTER TO A WELL KNOWN LEGAL PRINCIPLE THAT THE LEGISLATURE CANNOT BE SEEN TO H AVE ENACTED A REDUNDANT I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 5 OF 8 LEGISLATION AND THAT EVERY EFFORT SHOULD BE MADE TO GIVE SUCH INTERPRETATION WHICH ENSURES THAT A PROVISION IN A STATUTE IS NOT RENDERING OTIOSE. SUCH QUESTION MAY HAVE LED TO SOME INTERESTING DISCUSSION. HOWEVER, THE ENTIRE ISSUE H AS BEEN PUT BEYOND ANY PALE OF CONTROVERSY BY VIRTUE OF THE EXPLANATORY MEMORANDUM FOR INTRODUCING SUCH EXPLANATION. SUCH EXPLANATORY MEMORANDUM READS AS UNDER: 'CLARIFICATORY AMENDMENT IN RESPECT OF REASSESSMENT PROCEEDING UNDER SECTION 147 THE EXISTING P ROVISIONS OF SECTION 147 PROVIDES, INTER ALIA, THAT IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY ASSESS OR REASSESS SUCH INCOME AFTER RECORDING REASONS FOR RE - OPENI NG THE ASSESSMENT. FURTHER, HE MAY ALSO ASSESS OR REASSESS SUCH OTHER INCOME WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF PROCEEDINGS UNDER THIS SECTION. SOME COURTS HAVE HELD THAT THE ASSESSING OFFICER HAS TO RE STRICT THE REASSESSMENT PROCEEDINGS ONLY TO ISSUES IN RESPECT OF WHICH THE REASONS HAVE BEEN RECORDED FOR REOPENING THE ASSESSMENT. HE IS NOT EMPOWERED TO TOUCH UPON ANY OTHER ISSUE FOR WHICH NO REASONS HAVE BEEN RECORDED. THE ABOVE INTERPRETATION IS CONTR ARY TO THE LEGISLATIVE INTENT. WITH A VIEW TO FURTHER CLARIFYING THE LEGISLATIVE INTENT, IT IS PROPOSED TO INSERT AN EXPLANATION IN SECTION 147 TO PROVIDE THAT THE ASSESSING OFFICER MAY ASSESS OR REASSESS INCOME IN RESPECT OF ANY ISSUE WHICH COMES TO HIS N OTICE SUBSEQUENTLY IN THE COURSE OF PROCEEDINGS UNDER THIS SECTION, NOTWITHSTANDING THAT THE REASON FOR SUCH ISSUE HAS NOT BEEN INCLUDED IN THE REASONS RECORDED UNDER SUB - SECTION (2) OF SECTION 148. THIS AMENDMENT WILL TAKE EFFECT RETROSPECTIVELY FROM 1ST APRIL, 1989 AND WILL, ACCORDINGLY, APPLY IN RELATION TO ASSESSMENT YEAR 1989 - 1990 AND SUBSEQUENT YEARS.' 27. FROM THE ABOVE, IT CAN BE SEEN THAT THE EXPLANATION WAS MEANT TO BE CLARIFICATORY IN NATURE AND TO PUT THE ISSUE BEYOND ANY LEGAL CONTROVERSY. WHE N THE LEGISLATURE FOUND THAT IN FACE OF THE PROVISIONS CONTAINED IN SECTION 147 OF THE ACT POST 01.04.1989 SOME OF THE COURTS HAD TAKEN A VIEW THAT THE ASSESSING OFFICER IS RESTRICTED TO THE REASSESSMENT PROCEEDINGS ONLY ON ISSUES IN RESPECT OF WHICH THE R EASONS WERE RECORDED FOR REOPENING THE ASSESSMENT, SUCH EXPLANATION WAS INTRODUCED IN THE STATUTE. THUS, THE EXPLANATION WAS MEANT TO BE MERELY CLARIFICATORY IN NATURE AND WAS INTRODUCED WITH THE PURPOSE OF PUTTING AT REST THE LEGAL CONTROVERSY I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 6 OF 8 REGARDING T HE TRUE INTERPRETATION OF SECTION 147 OF THE ACT WHICH HAD ARISEN ON ACCOUNT OF CERTAIN JUDICIAL PRONOUNCEMENTS. WE HAVE NOTICED THAT PRIOR TO ENACTMENT OF EXPLANATION 3 TO SECTION 147, PUNJAB AND HARYANA HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX VS . ATLAS CYCLE INDUSTRIES REPORTED IN 180 ITR 319 (SUPRA) HAD TAKEN A RESTRICTED VIEW OF THE POWER OF THE ASSESSING OFFICER TO MAKE ANY ADDITION ON THE GROUNDS NOT MENTIONED IN THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. WE MAY ALSO NOTICE THAT KEREL A HIGH COURT IN CASE OF TRAVENCORE CEMENTS LTD. VS. ASSISTANT COMMISSIONER OF INCOME - TAX AND ANR REPORTED IN 305 ITR 170 HAD TAKEN SOMEWHAT SIMILAR STAND. 28. EXPLANATION 3 TO SECTION 147 OF THE ACT THUS DOES NOT IN ANY MANNER, EVEN PURPORT TO EXPAND THE POWERS OF THE ASSESSING OFFICER UNDER SECTION 147 OF THE ACT. IN ANY CASE, AN EXPLANATION CANNOT EXPAND THE SCOPE AND SWEEP OF THE MAIN BODY OF THE STATUTORY PROVISION. IN CASE OF S.SUNDARAM PILLAI VS. V.R.PATTABIRAMAN REPORTED IN AIR 1985 SUPREME COURT 58 2 THE SUPREME COURT OBSERVED THAT, AN EXPLANATION ADDED TO A STATUTORY PROVISION IS NOT A SUBSTANTIVE PROVISION BUT AS THE PLAIN MEANING OF THE WORD ITSELF SHOWS IT IS MERELY MEANT TO EXPLAIN OR CLARIFY CERTAIN AMBIGUITIES WHICH MAY HAVE CREPT IN THE STATU TORY PROVISION. IT WAS OBSERVED AS UNDER: '52. THUS, FROM A CONSPECTUS OF THE AUTHORITIES REFERRED TO ABOVE, IT IS MANIFEST THAT THE OBJECT OF AN EXPLANATION TO A STATUTORY PROVISION IS - (A) TO EXPLAIN THE MEANING AND INTENDMENT OF THE ACT ITSELF, (B) WHER E THERE IS ANY OBSCURITY OR VAGUENESS IN THE MAIN ENACTMENT, TO CLARIFY THE SAME SO AS TO MAKE IT CONSISTENT WITH THE DOMINANT OBJECT WHICH IT SEEMS TO SUBSERVE. (C) TO PROVIDE AN ADDITIONAL SUPPORT TO THE DOMINANT OBJECT OF THE ACT IN ORDER TO MAKE IT MEA NINGFUL AND PURPOSEFUL. (D) AN EXPLANATION CANNOT IN ANY WAY INTERFERE WITH OR CHANGE THE ENACTMENT OR ANY PART THEREOF BUT WHERE SOME GAP IS LEFT WHICH IS RELEVANT FOR THE PURPOSE OF THE EXPLANATION, IN ORDER TO SUPPRESS THE MISCHIEF AND ADVANCE THE OBJEC T OF THE ACT IT CAN HELP OR ASSIST THE COURT IN INTERPRETING THE TRUE PURPORT AND INTENDMENT OF THE ENACTMENT, AND (E) IT CANNOT, HOWEVER, TAKE AWAY A STATUTORY RIGHT WITH WHICH ANY PERSON UNDER A STATUTE HAS BEEN CLOTHED OR SET AT NAUGHT THE WORKING OF AN ACT BY BECOMING AN HINDRANCE IN THE INTERPRETATION OF THE SAME.' I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 7 OF 8 29. ABOVE DECISION HAS BEEN REFERRED TO AND RELIED UPON IN SEVERAL SUBSEQUENT DECISIONS. ABOVE PROPOSITION BEING WELL SETTLED, IT IS NOT NECESSARY TO REFER TO ALL SUCH DECISIONS. 30. WE MA Y ALSO APPROACH THE QUESTION FROM A SLIGHTLY DIFFERENT ANGLE. IT IS NOT IN DISPUTE THAT ONCE AN ASSESSMENT IS REOPENED BY A VALID EXERCISE OF JURISDICTION UNDER SECTION 147 OF THE ACT, IT IS OPEN FOR THE ASSESSING OFFICER TO ASSESS OR REASSESS ANY INCOME W HICH HAD ESCAPED ASSESSMENT WHICH COMES TO HIS LIGHT DURING THE COURSE OF HIS ASSESSMENT PROCEEDINGS WHICH WAS NOT MENTIONED IN THE REASON FOR ISSUING NOTICE UNDER SECTION 148 OF THE ACT. IN A NOTICE FOR REASSESSMENT WHICH HAS BEEN ISSUED BEYOND A PERIOD O F FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, THE CONDITION THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL FACTS FOR THE PURPOSE OF ASSESSMENT MUST ALSO BE ESTABLISHED UNLESS OFCOURSE SOME OTHER GROUND VIZ. NON - FILING OF THE RETURN AT ALL ETC. IS AVAILABLE TO THE ASSESSING OFFICER. IF SUCH NON - DISCLOSURE OF MATERIAL FACTS IS ESTABLISHED WITH RESPECT TO THE REASON RECORDED FOR ISSUING NOTICE FOR REOPENING THE ASSESSMENT, IT WOULD BE OPEN FOR THE ASSESSING OFFICER TO THEREAFTER EVEN ASSESS OTHER INCOME WHICH MIGHT HAVE ESCAPED ASSESSMENT BUT WHICH MAY NOT NECESSARILY SATISFY THE REQUIREMENT OF NON - DISCLOSURE OF TRUE AND FULL MATERIAL FACTS. IF IN S UCH A SITUATION, THE STAND OF THE REVENUE IS ACCEPTED, A VERY INCONGRUENT SITUATION WOULD COME ABOUT IF ULTIMATELY THE ASSESSING OFFICER WERE TO DROP THE GROUND ON WHICH NOTICE FOR REOPENING HAD BEEN ISSUED BUT TO CHASE SOME OTHER GROUNDS NOT SO MENTIONED FOR ISSUANCE OF THE NOTICE. IN SUCH A SITUATION, EVEN IF A CASE WHERE NOTICE FOR REOPENING HAS BEEN ISSUED BEYOND A PERIOD OF FOUR YEARS, THE ASSESSMENT WOULD CONTINUE EVEN THOUGH ON ALL THE GROUNDS ON WHICH THE ADDITIONS ARE BEING MADE, THERE WAS NO FAILU RE ON THE PART OF THE ASSESSEE TO DISCLOSE TRUE AND FULL MATERIAL FACTS. IN SUCH A SITUATION AN IMPORTANT REQUIREMENT OF FAILURE ON PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL FACTS WOULD BE TOTALLY CIRCUMVENTED. 31. AS ALREADY NOTED, EX CEPT FOR THE PUNJAB AND HARYANA HIGH COURT IN CASE OF MAJINDER SINGH KANG VS. COMMISSIONER OF INCOME - TAX AND ANR (SUPRA) ALL COURTS HAVE UNIFORMLY TAKEN A VIEW THAT EXPLANATION 3 TO SECTION 147 OF THE ACT DOES NOT CHANGE THE SITUATION INSOFAR AS THE PRESEN T CONTROVERSY IS CONCERNED. LEADING DECISION OF BOMBAY HIGH COURT IN CASE OF CIT. VS. JET AIRWAYS (I) LTD. HAS BEEN FOLLOWED BY DIFFERENT HIGH COURTS. IN CASE OF CIT. VS. JET AIRWAYS (I) LTD., THE HIGH COURT, IN ITS ELABORATE DECISION CONSIDERING THE STATU TORY PROVISIONS, DIFFERENT JUDICIAL PRONOUNCEMENTS AND THE EXPLANATORY MEMORANDUM FOR INTRODUCTION OF EXPLANATION 3 TO SECTION 147 OF THE ACT, RULED IN FAVOUR OF THE ASSESSEE. 32. PUNJAB AND HARYANA HIGH COURT IN CASE OF MAJINDER SINGH KANG VS. COMMISSION ER OF INCOME - TAX AND ANR (SUPRA) OFCOURSE HAS SOUNDED A I.T.A. NO . 2 10 6 /AHD/ 20 1 0 ASSESSMENT YEAR: 20 0 7 - 0 8 PAGE 8 OF 8 DIFFERENT NOTE. WE MAY, HOWEVER, NOTICE THAT THE EXPLANATORY MEMORANDUM TO EXPLANATION 3 TO SECTION 147 OF THE ACT WAS NOT BROUGHT TO THE NOTICE OF THE HIGH COURT IN THE SAID DECISION. THE HIGH COURT GAVE CONSIDERABLE IMPORTANCE ON SUCH EXPLANATION 3 TO SECTION 147 OF THE ACT AND THE LANGUAGE USED THEREIN. 33. IN THE RESULT, WE ANSWER THE QUESTION IN THE AFFIRMATIVE I.E. IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. ALL TAX APPEALS ARE DISMISSED 8. THE VIEWS SO STATED BY THEIR LORDSHIPS BIND US. 9. THE PLEA OF THE ASSESSEE, THEREFORE, IS INDEED WELL TAKEN. SINCE THERE IS NO ADDITION IN RESPECT OF THE REASONS RECORDED FOR REOPENING THE ASSESSMENT, IT WAS INDEED NOT OPEN TO HIM TO PROCEED WITH THE REASSESSMENT AND BRING OTHER INCOMES TO TAX. WE, THEREFORE, QUASH THE IMPUGNED REASSESSMENT PROCEEDINGS. 10. AS THE REASSESSMENT ITSELF STANDS QUASHED, ALL OTHER ISSUES, INCLUDING THE DELETION OF ADDITIONS ON MERITS, IS RENDERED INFRUCTUOUS. 11. IN THE RE SULT, THE APPEAL OF THE R EVENUE IS DISMISSED AS INFRUCTUOUS. PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DAY OF MAY , 2016. SD/ - SD/ - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 31 ST DAY OF MAY , 2016. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD