Shri Vijay Pal Singh, Kanpur V. ITO 3 (3), Kanpur

ITA 556/LKW/2011

• Counselvise Citation: 55623714 RSA 2011
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 19-08-2013
• Assessment Year: misc
• Appeal Filed On: 23-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Gift; Depreciation; Assessment record; Reassessment proceedings
• Section: 44AD; 147; 148; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW SMC BENCH, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.556/LKW/2011 ASSESSMENT YEAR:1997-98 SHRI VIJAY PAL SINGH PROP. MAA DURGA ENTERPRISES 82-BARRA GOAN, BARRA, KAN P UR V. ITO 3(3) KANPUR PAN:AHXPS9550P ( A PP ELLANT ) ( RES P ONDENT ) APPELLANT BY: SHRI. ABHI NAV MEHROTRA, ADVOCATE RES P ONDENT B Y :SHRI. ALOK MITRA, D.R. DATE OF HEARIN G : 19.08.2013 DATE OF PRONOU NCEMENT: 26.8.2013 O R D E R THIS APPEALS IS PREFERRED BY TH E ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROU NDS, WHICH ARE AS UNDER:- 1) THE LD. COMMISSIONER OF IN COME TAX (APPEALS)-II, KANPUR HAS ERRED IN LAW BY NOT CONSIDERI NG AND ALLOWING THE ADDITION MADE ON ACCOUNT OF 8% RECEIPTS FROM CIVIL CONSTRUCTION WORKS UNDER THE PROVISIONS OF SECTION 44AD WITHOU T CONSIDERING THE DIRECTIONS AS WERE GIVEN BY THE HON'BLE CENTRA L BOARD OF DIRECT TAXES, NEW DELHI'S INSTRUCTION NO. 1956 DATED 19-11-1998 AND CIRCULAR NO.3/2001 DATED 09-02-2001 WHICH WERE ISSUED TO REMOVE THE DIFFICULTIES AND HARDSHIP TO ADOPT THE BELOW RATE OF 8% OF CIVIL CONSTRUCTION RECEIPTS FOR ESTIMATION OF INCOME FOR ASSESSMENT YEAR 1997-98 SUBJECT TO COMPULSORY SCRUTINY OF CASE AS IN THIS :-2-: CASE BOOKS OF ACCOUNTS ARE MAIN TAINED AND AN AUDIT REPORT ALONGWITH WRITTEN APPLICATION DATE D 30-10-2002 WERE FILED DURING THE COURSE OF ASSESSMENT PROCEEDIN GS BEFORE THE A.O. I.E. THE I.T.O.3(2) KANPUR WHO DID NOT CONSID ER THE AFORESAID PARTICULARS OF ACCOUNTS AND IN EARLIER DECISI ONS DATED 19-09-2005 THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, LU CKNOW BENCH, LUCK NOW ALSO HELD IN FAVOUR OF THE I.T. DEPARTMENT BUT IT STILL APPEARS THAT ENTIRE MATTERS ARE SUB-JUDICE AND FURTHER RE QUIRED TO BE SCRUTINIZED BY THE ASSESSING OFFICER PROPERLY ON DIRECTIONS. 2) THE LD. C.I.T.(A)-II, KANPUR AL SO HAS ERRED IN LAW BY NOT CONSIDERING AND ALLOWING THE ADDITI ONS WHICH WERE ALSO UPHELD IN FAVOUR OF THE DEPTT. FOUND NOT PROPERLY BEEN SCRUTINIZED AND INVESTIGATED BY THE A.O. ON ACCOUNT OF A LOAN GIVEN BY SMT. FAUZIA SULTAN FOR RS.18,000/- AND ALSO A GIFT RECEIVED FROM SHRI ASHOK KUMAR FOR RS.18,000/- WHEREAS CONF IRMATIONS AND EXECUTED GIFT DEEDS COPIES WERE FILED WITH THE A.O. I.E. I.T. 0.3(2), KANPUR FOR HIS SATISFACTION AND MAKING NECE SSARY SCRUTINY AND ALSO FOR CONSIDERATION BUT NO ANY PROPER INVESTIGATION ETC. WERE MADE BY HIM THROUGH THE DEPARTMENTAL PROC EDURES AND UNNECESSARILY THESE AMOUNTS HAVE BEEN ADDED BY HIM, WHICH FURTHER REQUIRED TO BE SCRUTINIZED PROPERLY ON DIRECTIONS. 3) THE LD. C.I.T.(A)-II, KANPUR FURT HER DID CONSIDER THE PENALTY PROCEEDINGS WHICH HAD SINCE BEEN INITIATED IN THE CASE UNDER THE PROVISIONS OF SECTION 271(1) (C) RE AD WITH SECTION 274 OF THE ,I.T. ACT 1961 AND HAD ALSO LEVIED INTEREST U/S 234 A, B & C AND HAD ALSO LEVIED INTEREST U/S 220(2) WHICH RE QUIRED TO BE QUASHED ACCORDINGLY AS NO ANY CONCEALMENT OF PARTICUL ARS OF ACCOUNTS WERE MADE BY THE ASSESSEE AND THESE ALSO REQUIRED TO BE QUASHED ACCORDINGLY. 4) THE ASSESSING OFFICER AS WELL AS THE LD. C.I.T. (A)-II, KANPUR :-3-: HAVE NOT PROPERLY VIEWED THE AF ORESAID INSTRUCTION NO.1956 DATED 19-11-1998 AND CIRCULAR NO.3/ 2001 DATED 09-02-2001 OF THE HON'BLE C.B.D.T. NEW DELHI WHICH ARE APPLICABLE IN THE CASE OF APPELLANT FOR SCRUTINY AND PROPER IN VESTIGATION OF ALL PARTICULARS OF ACCOUNTS HAVE NEVER PROPERLY BEEN MADE BY THEM. SO THAT FURTHER PRAYED TO REVIEW ALL SU CH MATTERS AT THE STAG E OF A.O. FOR MAKING THE PROPER SCRUTINY OF ACCOUNTS OF THE APPELLANT. 5) THAT ANY OTHER POINT BE ADDUCED AT THE TIME OF HEARING OF THE APPEAL IN THE CASE. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE ASSESSEE MOVED AN APPLICATION FOR ADMISSIO N OF ADDITIONAL GROUNDS WI TH THE SUBMISSION THAT THESE GROUNDS GO TO THE ROOT OF TH E CASE, THEREFORE, THE SAME MAY BE ADMITTED FOR ADJUDICATION. THROUGH THE ADDITIONAL GROU NDS, THE ASSESSEE HAS CHALLENGED THE REOPENING OF THE ASSESSMENT FOR THE REASON THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT WITHOUT FORMING A BELIEF THAT THE INCOME CHARGEABLE TO TAX HA S ESCAPED ASSESSMENT. FOR THE SAKE OF REFERENCE, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE EXTRACTED HEREUNDER:- A) BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. ASSESSING OFFICER HAS NOT PROVIDED A COPY OF THE REASONS RECORDED TO THE ASSESSEE, SO AS TO ENABLE HIM TO DISPUTE THE VALIDITY OF REASSESSMENT PROCEEDINGS. B) BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSMENT PROCEEDINGS HAVE BEEN INITIATED BEYOND 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND HENCE IT IS INCUMBENT FOR THE ASSESSING OFFICER TO 'QUA NTIFY' THE QUANTUM OF ESCAPED INCOME EXCEEDING RS.1 LAC, WHICH IN THE INSTANT CASE HAS NOT BEEN DONE. HENCE THE REASSESSMENT PROC EEDINGS ARE BAD IN LAW AS PER THE VERDICT OF THE HON'BLE JU RISDICTIONAL HIGH COURT. :-4-: C) BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPARENT REASONS, AS RECORDED BY THE LD. ASSESSING OFFICER DO NOT LEAD TO THE FORMATION OF BELIEF TH AT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, AS THE ASSE SSMENT HAS MERELY BEEN REOPENED FOR THE SOLITARY REASON THAT THE RETURN OF INCOME WAS NOT ACCOMPANIED WITH TAX AUDIT REPORT, WHEREAS, AS PER THE INSTRUCTIONS OF THE CBDT, THERE WAS NO SUCH REQUIREMENT, UPTO TO THE A.Y. 1997- 98, WHICH IS THE YEAR UNDER CONSIDERATION. 3. THE LD. D.R., ON THE OTHER HAND, HA S CONTENDED THAT THE ADDITIONAL GROUNDS ARE RAISED IN SECOND ROUND OF APPEAL. HE SUBMITTED THAT IN THE FIRST ROUND OF APPEAL THE MATTER WENT UPTO THE TRIBUNAL AND THE TRIBUNAL RESTORED THE MATTER BACK TO THE F ILE OF THE ASSESSING OFFICER FOR RE- ADJUDICATION OF THE ISSUES AFRESH AFTE R AFFORDING OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. DURING THE COURSE OF PROCEEDINGS IN THE FIRST ROUND OF APPEAL THE ASSESSEE HAS NOT RAISED ANY OBJECTION WITH REGARD TO THE VALIDITY OF REOPENING OF ASSESSMENT. EVEN IN THE SECOND RO UND OF APPEAL TILL THE CONCLUSION OF HEARING BY THE FIRST APPE LLATE AUTHORITY VALIDITY OF REOPENING HAS NOT BEEN CHALLENGED BY THE ASSESSEE. NOW FOR THE FIRST TIME THE ADDITIONAL GROUNDS CHALLENGING THE VALI DITY OF REOPENING HAVE BEEN RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL THAT TOO WITH REGARD TO THE FORMATION OF BELIEF BY THE ASSESSING OFFICER THAT IN COME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE LD. D. R. FURTHER INVITED MY ATTENTION TO THE FIRST ASSESSMENT ORDER DATED 13. 3.2003 WITH THE SUBMISSI ON THAT THE ASSESSING OFFICER HAS MENTIONED IN HIS ORDER THAT THE ASSE SSEE HAS NOT DECLARED THE INCOME FROM HIS BUSINESS AT 8% OF THE GROSS RECEIPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 44AD OF THE INCO ME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). MOREOVER, THE RETURN OF INCOME WAS ALSO NOT ACCOMPANIED BY THE AUDITED ACCOUNT. THEREFORE, IN THE ABSENCE OF THE AUDITED ACCOUNT, THE INCOME HAS TO BE ASSESSED AT 8% OF THE GROSS RECEIPTS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 44AD OF THE ACT. SINCE THE ASSESSEE HIMSELF HAS NOT FU RNISHED THE RELEVANT DOCU MENTS ON THE BASIS OF :-5-: WHICH INCOME CAN BE ASSESSED AT LESS TH AN 8% OF THE GR OSS RECEIPT, THE ASSESSING OFFICER HAS RIGHTL Y FORMED A BELIEF THAT TH E INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT INASMUCH AS , AS PER PROVISIONS OF SECTION 44AD OF THE ACT THE INCOME IS TO BE ASSESSED AT 8% ON THE GROSS RECEIPT OR TOTAL TURNOVER. THE LD. D.R. FU RTHER CONTENDED THAT SINC E THE ASSESSEE HIMSELF IS RESPONSIBLE FOR NON-FURNISHING OF RE LEVANT DOCUMENTS RESULTING INTO ASSESSMENT OF INCOME AT LESS THAN 8% OF THE GROSS RECEIPTS, THE ASSESSING OFFICER HAS RIGHTLY REOPENED TH E ASSESSMENT AFTER FOUR YEARS. 4. HAVING HEARD THE RIVAL SUBMISSION S AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES AND THE ADDITIONAL GROUNDS RAISED BEFORE THE TRIBUNAL, I FIND THAT TH OUGH THE ISSUE RAISED IN THE ADDITIONAL GROUNDS IS OF LEGAL IN NATURE, BUT IT HAS BEEN RAIS ED AT A BELATED STAGE. IN THE FIRST ROUND OF APPEAL, NO OBJECTIO N WAS RAISED IN THIS REGARD. EVEN IN THE SECOND ROUND OF APPEAL TILL CONCLU SION OF APPEAL BY THE LD. CIT(A), REOPENING OF ASSESSMENT HAD NOT BEEN CHALLENGED . FIRST ASSESSMEN T ORDER WAS PASSED BY THE ASSESSING OFFICER VIDE ORDER DATED 13.3.2003 AND THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUND IS FI LED BEFORE THE TRI BUNAL ALMOST AFTER 10 YEARS FROM THE DATE OF THE ASSESS MENT ORDER HAVING PLEADED THAT THE ASSESSMENT IS BAD AS TH E ASSESSING OFFICER HAS NOT SUPPLIED THE COPY OF REASONS RECORDED FOR REOPENING TO TH E ASSESSEE. IN SUPPORT OF THIS CONTENTION, HE HAS PLACED RELIANCE UPON THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRABHA RANI AGARWAL VS. ITO IN INCOME-TAX APEAL NO.67 OF 2005. DU RING THE COURSE OF HEARING OF THE APPEAL, IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT THE REASONS WERE NOT RECORDED BEFORE REOPENING OF ASSE SSMENT AND THE LD. D.R. WAS DIRECTED TO OBTAIN THE ASSESSMENT RECORD AN D TO FURNISH THE COPY OF REASONS RECORDED FOR REOPENING OF ASSESSMENT BE FORE THE TRIBUNAL, BUT THE LD. D.R. HAS EXPRESSED HIS INABILITY ON THE GROU ND THAT IT IS VERY OLD MATTER AND THE ORIGINAL FILE IS NOT TRACEA BLE. HE, HOWEVER, PREPARED A SKELETON FILE BUT THE :-6-: ORIGINAL REASONS RECORDED BY THE AS SESSING OFFICER BEFO RE REOPENING OF ASSESSMENT ARE NOT AVAILABLE. 5. THE LD. D.R., HOWEVER, INVITED MY ATTENTION TO THE FIRST ASSESSMENT ORDER DATED 13.3.2003 WITH THE SUBM ISSION THAT THE ASSESSEE HAS NOT DECLARED HIS INCOME FROM HIS BUSINESS AT 8% OF THE GROSS RECEIPT/TOTAL TURNOVER IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 44AD OF THE ACT AS THE RETURN FILED WAS NOT ACCOMPANIED WITH THE AUDITED ACCOUNT. FOR THESE REASONS, THE ASSESSING OFFI CER ISSUED A NOTICE TO THE ASSESSEE UNDER SECTION 148 OF THE ACT. THESE FACTS WERE NOT DISPUTED BY THE LD . COUNSEL FOR THE ASSESSEE ALSO. NOW THE ISSUE IS THAT WHETHER THE REASONS RECORDED IN THE ASSESSMENT ORDER IS SUFFICIENT TO HOLD THAT THE ASSESSING OFFICER HAS FORMED A BELIEF THAT THE INCOME CHARGEABLE TO TAX HAS ESCA PED ASSESSMENT ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE. UNDISPUTED LY THE RETURN OF INCOME WAS NOT ACCOMPANIED BY AUDI TED ACCOUNT AND THE INCOME WAS DECLARED LESS THAN 8% OF THE GROSS RECEIPT AND THE SAME WAS ACCEPTED BY THE DEPARTMENT PROCESSING THE RETURN UNDER SECTION 143(1)(A) OF THE ACT. SINCE THE RETURN WAS PROCESSED UNDER SECTION 143(1)(A) OF THE ACT, THERE WAS NO APPLICATION OF THE MIND BY THE ASSESSING OFFICER IN THIS REGARD. AS PER PROVISIONS OF SECTION 44AD OF THE ACT IF THE ASSESSEE IS ENGAGED IN AN ELIGIBLE BUSINESS, A SUM EQ UAL TO EIGHT PER CENT OF THE TOTAL TURNOVER OR GROSS RECEIPTS OF THE ASSESSEE IN TH E PREVIOUS YEAR ON ACCOUNT OF SUCH BUSINESS, SHALL BE DEEMED TO BE THE PROFITS AND GAINS OF SUCH BUSINESS CHARGEABLE TO TA X UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION'. AS PER SUB-CLAUSE (6) OF SECTION 44AD OF THE ACT, THE INCOME CAN BE ACCEPTED LOWER TH AN 8% IF THE ASSESSEE KEEPS AND MAINTAINS SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS AS REQUIRED UNDER SUB-SECTION (2) OF SECTION 44AA AND GETS HIS ACCOUNTS AUDI TED AND FURNISHES A REPORT OF SUCH AUDIT AS REQUIRED UNDER SE CTION 44AB. THE RELEVANT PROVISIONS OF SECTION 44AD OF THE ACT ARE EXTRACTED HEREUND ER FOR THE SAKE OF REFERENCE:- :-7-: 44AD. SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF BUSINESS OF CIVIL CONSTRUCTION, ET C.--(1) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTIO NS 28 TO 43C, IN THE CASE OF AN ASSESSEE ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION OR SUPPLY OF LABOUR FOR CIVIL CONSTRUCTION, A SU M EQUAL TO EIGHT PER CENT. OF THE GROSS RECEIPTS PAID OR PAYABLE TO THE ASSESSEE IN THE PREVIOUS YEAR ON ACCOUNT OF SUCH BUSINESS OR, AS THE CASE MAY BE, A SUM HIGHER THAN THE AFORESAID SUM AS DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME, SHALL BE DEEMED TO BE THE PROFITS AND GAINS OF SUCH BUSINESS CHARGEABLE TO TAX UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION': PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY IN CASE THE AFORESAID GROSS RECEIPTS PAID OR PAYABLE EXCEED AN AMOUNT OF FORTY LAKH RUPEES. (2) ANY DEDUCTION ALLOWA BLE UNDER THE PROVISIONS OF SECTIONS 30 TO 38 SHALL, FOR THE PURPOSES OF SUB- SECTION (1), BE DEEMED TO HAVE BEEN ALREADY GIVEN FULL EFFECT TO AND NO FURTHER DEDUCTION UNDER THOSE SECTIONS SHALL BE ALLOWED. PROVIDED THAT WHERE THE ASSESSEE IS A FIRM, THE SALARY AND INTEREST PAID TO ITS PARTNERS SHALL BE DE DUCTED FROM THE INCOME COMPUTED UNDER SUB-SECTION (1) SUBJECT TO TH E CONDITIONS AND LIMITS SPCIFIED IN CLAUSE (B) OF SECTION 40. (3) THE WRITTEN DOWN VALUE OF AN Y ASSET USED FOR THE PURPOSE OF THE BUSINESS REFERRED TO IN SUB- SECTION (1) SHALL BE DEEMED TO HAVE BEEN CALCULATED AS IF THE ASSESSEE HAD CLAIMED AND HAD BEEN ACTUALLY ALLOWED THE DEDUCTION IN RESPECT OF THE DEPRECIATION FOR EACH OF THE RELEVANT ASSESSMENT YEARS. :-8-: (4) THE PROVISIONS OF SECTIONS 44A A AND 44AB SHALL NO T APPLY IN SO FAR AS THEY RELATE TO THE BUSINE SS REFERRED TO IN SUB-SECTION (1) AND IN COMPUTING THE MONETARY LIMITS UNDER THOSE SECTIONS, THE GROSS RECEIPTS OR, AS THE CASE MA Y BE, THE INCOME FROM THE SAID BUSINESS SHALL BE EXCLUDED. (5) NOTHING CONTAINED IN THE FOREGO ING PROVISIONS OF THIS SECTION SHALL APPLY, WHERE THE ASSESSEE CL AIMS AND PRODUCES EVIDENCE TO PROVE THAT THE PROFITS AND GAIN S FROM THE AFORESAID BUSINESS DURING THE PREVIOUS YEAR RELE VANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1997, OR ANY EARLIER ASSESSMENT YEAR, ARE LOWER THAN TH E PROFITS AND GAINS SPECIFIED IN SUB-SECTION (1), AND THEREUPON TH E ASSESSING OFFICER SHALL PROCEED TO MAKE AN ASSESSMENT OF THE TO TAL INCOME OR LOSS OF THE ASSESSEE AND DETERMINE THE SUM PAYABLE BY THE ASSESS EE ON THE BASIS OF ASSESSMENT MADE UNDER SUB-SE CTION (3) OF SECTION 143. EXPLANATION.--FOR THE PURPOSES OF TH IS SECTION, THE EXPRESSION 'CIVIL CONSTRUCTION' INCLUDES-- (A) THE CONSTRUCTION OR REPAIR OF ANY BUILDING, BRI DGE, DAM OR OTHER STRUCTURE OR OF ANY CANAL OR ROAD; (B) THE EXECUTION OF ANY WORKS CONTRACT. (6) NOTWITHSTANDING ANYTHING CONTAINED IN THE FOREGOING PROVISIONS OF THIS SECTION, AN ASSESSEE MAY CLAIM LOWER PROFITS AND GAINS THAN THE PROFITS AND GAINS SPECIFIED IN SUB-SECTION (1), IF HE KEEPS AND MAINTAINS SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS AS REQUIRED UNDER SUB-SECTION (2 ) OF SECTION 44AA AND GETS HIS ACCOUNTS AUDITED AND FURNISHES A RE PORT OF SUCH AUDIT AS REQUIRED UNDER SECTION 44AB. :-9-: 6. UNDISPUTEDLY IN THE INSTANT CASE THE ASSESSEE HAS NOT FURNISHED THE AUDITED ACCOUNT ALONG WITH THE RE TURN OF INCOME AND HIS INCOME WAS DECLARED AT LESS THAN 8% OF THE GROSS TURNOVER WHICH WAS PROCESSED BY THE ASSESSING OFFICER UNDER SE CTION 143(1)(A) OF THE ACT. HAVING NOTED THAT THE INCOME WAS DECLARED LESS THAN 8% OF THE GROSS TURNOVER AND THE RETURN WAS NOT ACCOMPANIED BY THE AUDITED ACCOUNT, THE ASSESS ING OFFICER HAS RIGHTLY FORMED A BELIEF TH AT THE INCOME CHARGEAB LE TO TAX HAS ESCAPED ASSESSMENT. I, THER EFORE, FIND NO INFIRMITY IN THE FORMATION OF BELIEF BY THE ASSESSING OFFICER THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. MOREOVER, THE INCOME WAS ESCAPED ASSESSMENT ON ACCOUNT OF NON-FURNISHING OF AUDITED ACCOUNT ALO NG WITH THE RETURN OF INCOME. IN THESE CIRCUMSTANCES, I AM OF THE CONSID ERED VIEW THAT THE ASSESSING OFFICER HAS RIGHTLY INVOKED THE PR OVISIONS OF SECTION 147 OF THE ACT BY FORMING A BELIEF THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT ON ACCOUNT OF THE FAULT OF THE ASSESSEE. HOWEVER, THIS TYPE OF OBJECTION THAT NON-FURNISHING OF REASONS RECORDED FOR REOPENING THE ASSESSMENT CAN INVALIDATE THE ASSESSMENT CAN BE RAISED IN ORIGINAL ASSESSMENT PROCEEDINGS AND NOT AT THIS BELATED STAGE AFTER A PERIOD OF 10 YEARS. NO DOUBT THE ASSESSEE HAS A RIGHT TO ASK FOR SUPPLY OF REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING OF ASSESSMENT, BU T THAT RIGHT CAN BE EXERCISED DURING THE ORIGINAL ASSESSMENT PROCEEDINGS WHEN THE ASSESSMENT WAS REOPENED AND THE ASSESSING OFFICER HAS STARTE D THE PROCEEDINGS FOR COMPLETING THE ASSESSMENT. IN THAT SITUATION, IF TH E ASSESSING OFFICER DOES NOT SUPPLY THE COPY OF THE REASONS RECORDED AND PR OCEEDED WITH FRAMING OF ASSESSMENT, SUCH ASSESSMENT CAN BE HELD TO BE IN VALID OR ILLEGAL, BUT THIS ARGUMENT CANNOT BE RAISED IN SECOND ROUND OF APPE AL THAT TOO AT THE STAGE OF TRIBUNAL AFTER A PERIOD OF 10 YEARS. ACCORDIN GLY I FIND NO MERIT IN THIS ARGUMENT OF THE ASSESSEE AND THE SAME IS HEREBY REJECTED. :-10-: 7. SINCE THE REOPENING OF ASSESSMEN T IS UPHELD, THE ADDITIONAL GROUNDS RAISED BY THE AS SESSEE ARE DISMISSED AFTE R HAVING ADMITTED THE SAME. 8. SO FAR AS THE GROUNDS RAISED ON MERIT, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT RAISED ANY ARGUMENT. I, HOWEVER, EXAMINED THE ORDER OF THE LD. CIT(A) AND FIND THAT THE LD. CIT(A) HAS ADJUDICATED ALL THE GROUNDS PROPERLY AND I FIND NO IN FIRMITY THEREIN. ACCORDIN GLY I CONFIRM THE ORDER OF THE LD. CIT(A). 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.8.2013. SD/- [SUNIL KUMAR YADAV] JUDICIAL MEMBER DATED:26.8.2013 JJ:2208 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR