Goel Exim Pvt. Ltd., New Delhi V. DCIT, Central Circle- 1, New Delhi

ITA 6693/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4088 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 06-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard; Tangible material; Difference of opinion; Accommodation entries; Competent authority; Change of opinion
• Section: 143(3); 142(1); 147; 68; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES C : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.6693/DEL./2017 ASSESSMENT YEAR 2006-2007 M/S. GOEL EXIM PVT. LTD., 2606/4, 1 ST FLOOR, SOLITARE PLAZA, GURUDWARA ROAD, KAROL BAGH, NEW DELHI 110 005. PAN AACCG1799B VS. THE DCIT, CENTRAL CIRCLE-1 NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI HIREN MEHTA, FCA FOR REVENUE : S MT. SIMRAN BHULLAR, CIT - D.R. DATE OF HEARING : 17.01.2018 DATE OF PRONOUNCEMENT : 22.01.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-29, NEW DELHI, DATED 11 TH SEPTEMBER, 2017, FOR THE A.Y. 2006-2007. 2. IN THE PRESENT APPEAL, THE ASSESSEE CHALLENGED THE VALIDITY OF THE REOPENING OF THE ASSESSMENT UNDER SECTIONS 1 47/148 OF THE I.T. ACT, ADDITION OF RS.25 LAKHS UNDER SECTION 68 ON ACCOUNT OF SHARE 2 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. CAPITAL AS UNEXPLAINED CASH CREDIT AND ADDITION OF RS.62,500 ON ACCOUNT OF PROFESSIONAL FEES ON ACCOMMODATION ENTRY . 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 4. LEARNED COUNSEL FOR THE ASSESSEE WITH REGARD TO THE VALIDITY OF THE REOPENING OF THE ASSESSMENT UNDER S ECTION 147 OF THE I.T. ACT, SUBMITTED THAT THE RE-ASSESSMENT HAVE BEE N INITIATED ON MERE CHANGE OF OPINION. THEREFORE, IT IS, BAD IN LA W AND THAT THE RE- ASSESSMENT IS INITIATED AFTER 04 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THERE IS NO FAILURE ON THE PART OF ASSESSEE TO MAKE RETURN UNDER SECTION 139 OF THE I.T. ACT, 1961 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR TH E ASSESSMENT. HE HAS, THEREFORE, SUBMITTED THAT THE RE-ASSESSMENT IS LIABLE TO BE QUASHED. 5. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT AFTER RECEIVIN G INFORMATION FROM THE INVESTIGATION WING, IT CAME TO THE NOTICE OF TH E DEPARTMENT THAT ASSESSEE-COMPANY HAS RECEIVED ACCOMMODATION ENTRIES FROM 05 3 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. PARTIES FOR A SUM OF RS.25 LAKHS WHO WERE HAVING ME AGRE INCOME. THEREFORE, THE RE-ASSESSMENT IS VALID. 5.1. IT IS WELL SETTLED LAW THAT VALIDITY OF THE R EOPENING OF THE ASSESSMENT SHALL HAVE TO BE DETERMINED WITH REFEREN CE TO THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THE LEARN ED COUNSEL FOR THE ASSESSEE FILED COPY OF THE REASONS RECORDED BY A.O. UNDER SECTION 147 OF THE I.T. ACT. THE SAME READS AS UNDER : ANNEXURE-A M/S. GOEL EXIM INDIA PVT. LTD., (AACCG1799B) ASSESSMENT YEAR 2006-2007 THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEA R UNDER CONSIDERATION VIDE RECEIPT NO. 90012379 DATED 20/10 /2006 DECLARING INCOME OF RS.3,56,856/-. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSED AT INCOME OF RS. 26,30,113/- U/S 143(3) OF L.T. ACT, 1961 ON DATED 26.12.2008. A SEARCH/SURVEY ACTION UNDER SECTION 132/1 33A OF THE I.T. ACT, 1961 WAS CONDUCTED AT THE RESIDENTIAL AND BUSI NESS PREMISES OF SH. SURENDER KUMAR JAIN AND HIS BROTHER SHRI VIRENDRA JAIN BY INVESTIGATION WING, NEW DELHI. LAR GE NUMBER 4 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. OF INCRIMINATING DOCUMENTS WERE FOUND AND IMPOUNDED /SEIZED IN THE COURSE OF SURVEY/SEARCH OPERATION. DURING THE COURSE OF POST SEARCH/SURVEY INV ESTIGATION IT HAS BEEN EVIDENTLY ESTABLISHED THAT SHRI S.K.JAIN AND H IS BROTHER SHRI VIRENDRA JAIN ARE IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES THROUGH CHEQUE IN LIEU OF CAS H. ACCOMMODATION ENTRIES ARE PROVIDED TO VARIOUS BENEF ICIARY COMPANIES/ENTITIES THROUGH A NUMBER OF PAPER/DUMMY COMPANIES. THESE DUMMY COMPANIES ARE MANAGED AND CONTROLLED BY SHRI SURENDRA KUAMR JAIN AND HIS BROT HER VIRENDRA KUMAR JAIN. THESE ACCOMMODATION ENTRIES ARE PROVIDE D BY WAY OF SHARE CAPITAL, SHARE APPLICATION MONEY AND/OR UN SECURED LOANS ETC. SOMETIMES SHARE CAPITAL IS PROVIDED BY T HESE COMPANIES ON HEAVY PREMIUM ALSO. SHRI S.K.JAIN AND VIRENDRA KUMAR JAIN USED TO CHARGE COMMISSION FROM BENEFICIA RIES FOR PROVIDING SUCH ACCOMMODATION ENTRIES. A DETAILED REPORT IN THIS REGARD HAS BEEN RECEIVED FROM DIRECTOR OF INVESTIGATION-(II), NEW DELHI VIDE HIS LETTER NO. DIT (LNV)-II U/S 148/2012-13/195 DATED 12.03.2013. 5 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. AS PER THE REPORT OF INVESTIGATION WING, M/S GOEL E XIM INDIA PVT. LTD. HAS TAKEN THE FOLLOWING ACCOMMODATION ENT RIES FROM COMPANIES BEING RUN/CONTROLLED BY SHRI SURENDRA KUM AR JAIN AND HIS BROTHER VIRENDRA KUMAR JAIN DURING THE PERI OD RELEVANT A.Y. 2006-2007. S.NO. BENEFICIARY BANK NAME VALUE OF ENTRY TAKEN INSTRUMENT T.NO. BY WHICH ENTRY TAKEN DATE ON WHICH ENTRY TAKEN NAME OF ACCOUNT HOLDER OF ENTRY GIVING ACCOUNT BANK FROM WHICH ENTRY GIVEN 1. UTI BANK 5,00,000 012316 29.07.2005 SATISH GOEL UTI BANK 2. UTI BANK 5,00,000 012209 29.07.2005 SATISH GOEL UTI BANK 3. UTI BANK 5,00,000 012536 29.07.2005 SATISH GOEL UTI BANK 4. UTI BANK 5,00,000 009626 29.07.2005 SATISH GOEL UTI BANK 5. KOTAK BANK 5,00,000 000139 29.07.2005 SATISH GOEL KOTAK BANK IN THIS CASE, NEITHER THE ASSESSEE HAD VOLUNTARIL Y DECLARED THE INCOME TO THE TUNE OF RS.25,00,000/- I N ITS RETURN OF INCOME NOR DURING THE COURSE OF ASSESSMENT PROCE EDINGS U/S. 143(3) / 143(2) OF THE I.T. ACT, 1961. IN VIEW OF THE ABOVE FACT, I HAVE REASONS TO BELI EVE THAT INCOME AMOUNTING TO ATLEAST RS.25,00,000/- FOR ASSE SSMENT YEAR 2006-07 HAS ESCAPED ASSESSMENT WITHIN THE MEAN ING OF 6 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. SECTION 147 OF THE IT ACT, 1961. THE INCOME HAS BEE N ESCAPED DUE TO THE FAILURE ON THE PART OF ASSESSEE TO DISCL OSE ITS INCOME TRULY & FULLY. THUS, IT IS A FIT CASE FOR INITIATIO N OF PROCEEDINGS U/S 147 OF THE ACT. 5.2. IN THIS CASE, THE ASSESSEE FILED ORIGINAL RET URN OF INCOME ON DATED 20 TH OCTOBER, 2006 DECLARING INCOME OF RS.3,56,856, WHI CH WERE PROCESSED UNDER SECTION 143(1) OF THE I.T. ACT . THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT. THE ASSESSEE-COMP ANY WAS INCORPORATED ON 9 TH JULY, 2004 WITH A VIEW TO CARRY ON THE BUSINESS AS GOLDSMITH, SILVERSMITH, JEWELERS, GEM MERCHANTS IMPORTERS AND EXPORTS OF BULLION ETC., THE A.O. CALLED FOR THE DE TAILS AT ORIGINAL ASSESSMENT STAGE WHICH WERE PLACED ON RECORD AND WE RE ALSO SUBJECTED TO TEST CHECK. THE A.O. NOTED IN THE ORIG INAL ASSESSMENT ORDER THAT THERE ARE UNCONFIRMED SHARE CAPITAL RECE IVED BY ASSESSEE. IT WAS NOTED THAT DURING THE YEAR UNDER CONSIDERATI ON, ASSESSEE COMPANY RECEIVED FRESH SHARE CAPITAL OF RS.38 LAKHS AND SHARE PREMIUM OF RS.40 LAKHS WHICH, INTER ALIA, INCLUDED SHARE CAPITAL AND SHARE PREMIUM OF RS.5 LAKHS EACH FROM M/S. M.V. MAR KETING PVT. LTD., AND M/S. SURYA UDYOG LTD. SINCE SHARE CAPITAL HAS BEEN HELD 7 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. TO BE IN THE NATURE OF CASH CREDIT, THEREFORE, ASSE SSEE WAS ASKED TO FILE CONFIRMATION FROM THE PARTIES ALONG WITH THEIR BANK STATEMENTS AND ITR COPIES. IN ADDITION, ASSESSEE WAS ASKED TO PRODUCE DIRECTOR OF M/S. M.V. MARKETING PVT. LTD., SINCE THIS COMPAN Y WAS CONTROLLED BY SHRI MUKESH GUPTA AND SHRI RAJAN JASSAI, SHRI RA JESH BANSAL AND SHRI SURINDER PAL SINGH, WHO IN THEIR STATEMENT S BEFORE DIT (INV.), HAD ADMITTED THAT THEY WERE ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES TO VARIOUS BENEFICI ARIES. THE A.O. NOTED THAT INVESTIGATION WING OF THE DEPARTMENT HAD UNEARTHED HUGE MONEY LAUNDERING OPERATION AND SENT RELATED INFORMA TION TO THE FIELD FORMATIONS. IT WAS ALLEGED THAT ASSESSEE-COMPANY HA D RECEIVED CHEQUES IN LIEU OF CASH PAYMENT FROM THE ENTRY OPER ATORS PROVIDING ACCOMMODATION ENTRIES. THE PARTIES WHO HAVE UNACCOU NTED MONEY AND WANT TO INTRODUCE THE SAME IN THEIR BOOKS OF AC COUNT, WITHOUT PAYING TAXES. THE BENEFICIARIES IN THEIR TURN DEPOS ITED THE INSTRUMENTS IN THEIR BANK ACCOUNTS AND THE MONEY CO MES TO HIS REGULAR BOOKS OF ACCOUNT IN THE FORM OF GIFTS, SHAR E APPLICATION MONEY OR SHARE CAPITAL OR UNSECURED LOAN. THE A.O. NOTED THAT SHRI MUKESH GUPTA HAS STATED IN HIS STATEMENT DATED 16.01.2004 THE MODUS 8 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. OPERANDI OF THE ENTRY PROVIDER TO VARIOUS BENEFICIARIES. THE STATEMENT OF SHRI RAJAN JASSAI WAS RECORDED ON OATH ON 04.02. 2004 IN WHICH HE HAS ADMITTED THAT THESE CONCERNS HAVE BEEN USED BY HIM ALONG WITH SHRI MUKESH GUPTA AND SHRI SURINDER PAL SINGH FOR PROVIDING ACCOMMODATION ENTRIES TO VARIOUS BENEFICIARIES. THE STATEMENT OF SHRI SURINDER PAL SINGH WAS RECORDED UNDER OATH ON 24 TH DECEMBER, 2003 IN WHICH HE HAS AGAIN CONFIRMED THE SAME FACT. SIMILARLY, SHRI RAJESH BANSAL HAS ALSO ADMITTED OF BEING AN ENTRY P ROVIDER IN HIS STATEMENT DATED 16 TH JUNE, 2004. 5.3. THE A.O. NOTED THAT ASSESSEE DID NOT PRODUCE DIRECTOR OF M/S. M.V. MARKETING DESPITE SPECIFIC REQUEST AND AF TER CONSIDERING THE ISSUE IN DETAIL, MADE THE ADDITION OF RS.5 LAKH S UNDER SECTION 68 OF THE I.T. ACT. OTHER DISALLOWANCE WERE ALSO MADE AND ASSESSMENT UNDER SECTION 143(3) WAS COMPLETED VIDE ORDER DATED 26 TH DECEMBER, 2008 COMPUTING THE TOTAL INCOME OF ASSESSEE AT RS.2 6,30,113. 5.4. THE A.O. THEREAFTER ISSUED NOTICE UNDER SECTI ON 148 DATED 26 TH MARCH, 2013 AFTER DULY RECORDING REASONS AND OBTAI NING THE APPROVAL OF THE COMPETENT AUTHORITY. IT IS NOTED IN THE RE-ASSESSMENT ORDER THAT SEARCH AND SURVEY OPERATION WAS CONDUCTE D IN THE 9 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. PREMISES OF SHRI S.K. JAIN AND HIS BROTHER SHRI VIR ENDRA KUMAR JAIN AND DIT (INV.), NEW DELHI, FORWARDED DETAILED REPOR T STATING THAT THE ASSESSEE COMPANY HAS TAKEN ACCOMMODATION ENTRY FROM THE COMPANIES RUN AND CONTROLLED BY THESE TWO PERSONS. THE A.O. AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE-C OMPANY MADE ADDITION OF RS.25 LAKHS ON ACCOUNT OF UNEXPLAINED S HARE APPLICATION MONEY UNDER SECTION 68 OF THE I.T. ACT AND ALSO MAD E ADDITION OF RS.62,500 ON ACCOUNT OF PROFESSIONAL FEES PAID FOR ARRANGING ACCOMMODATION ENTRY. THE A.O. PASSED THE RE-ASSESSM ENT ORDER DATED 28 TH MARCH, 2014, UNDER SECTION 147 R.W.S. 143(3) OF TH E I.T. ACT. 6. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPO N THE DECISION OF DELHI HIGH COURT IN THE CASE OF PR. CIT VS. RMG POLYVINYL (I) LTD., (2017) 396 ITR 5 (DEL.) IN WHICH IT WAS H ELD AS UNDER : WHERE INFORMATION WAS RECEIVED FROM INVESTIGATION WING THAT ASSESSEE WAS BENEFICIARY OF ACCOMMODATION ENTRIES B UT NO FURTHER INQUIRY WAS UNDERTAKEN BY ASSESSING OFFICER , SAID INFORMATION COULD NOT BE SAID TO BE TANGIBLE MATERI AL AS PER SE AND, THUS, REASSESSMENT ON SAID BASIS WAS NOT JUSTI FIED. 10 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. 6.1. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER RELIED UPON THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS. MULTIPLEX TRADING & INDUSTRIAL CO. LTD., (2015) 378 ITR 351 (DEL.) IN WHICH IT WAS HELD AS UNDER : WHERE ASSESSEE HAD DISCLOSED ALL MATERIAL FACTS IN SUPPORT OF LOAN TRANSACTIONS AT TIME OF MAKING ASSESSMENT, INI TIATION OF RE- ASSESSMENT PROCEEDINGS AFTER EXPIRY OF FOUR YEARS F ROM END OF RELEVANT ASSESSMENT YEAR MERELY ON BASIS OF REPORT OF INVESTIGATION WING THAT LOAN RECEIVED FROM ONE R WAS BOGUS, WAS NOT SUSTAINABLE. 6.2. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO FIL ED COPY OF THE REPLY DATED 15 TH DECEMBER, 2008 FILED BEFORE A.O. IN WHICH VARIOUS DETAILS WERE SUBMITTED BEFORE A.O. ALONG WITH DETAI LED SUBMISSIONS SUPPORTED BY VARIOUS DOCUMENTS WITH REGARD TO FRESH SHARE CAPITAL ISSUED DURING THE YEAR UNDER CONSIDERATION. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND MAT ERIAL ON RECORD, WE ARE OF THE VIEW THAT INITIATION OF RE-AS SESSMENT PROCEEDINGS IS BAD IN LAW. THE A.O. PASSED THE ORIGINAL ASSESSM ENT ORDER UNDER SECTION 143(3) DATED 26 TH DECEMBER, 2008 ON THE RETURN FILED BY 11 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. ASSESSEE UNDER SECTION 139(1) DATED 20 TH OCTOBER, 2006. THE A.O. NOTED THAT ASSESSEE-COMPANY HAS RECEIVED FRESH SHAR E CAPITAL OF RS.38 LAKHS AND SHARE PREMIUM OF RS.40 LAKHS, TOTAL ING TO RS.78 LAKHS, IN ASSESSMENT YEAR UNDER APPEAL. THE DETAILS OF THE SAME ARE SUBMITTED BY LEARNED COUNSEL FOR THE ASSESSEE WHICH READS AS UNDER: GOEL EXIM INDIA PVT LTD ASSESSMENT YEAR 2006-07 DET AILS OF SHARE APPLICATION MONEY RECEIVED DURING THE ASSESSMENT YE AR 2006-07 S. NO. NAMES SHARE CAPITAL (AMOUNT IN RS.) SHARE PREMIUM (AMOUNT IN RS.) 1 PRAVEEN GUPTA 28,00,000/ - - 2 SURYA UDYOG LIMITED . 1,00,000/ - 4,00,000/ - 3 HILL RIDGE INVESTMENT LIMITED 1,00,000/ - 4,00,000/ - 4 WOGURELEASING & FINANCE PVT LTD 1,00,000/ - 4,00,000/ - 5 SONY FINANCIAL SERVICES LIMITED 1,00,000/ - 4,00,000/ - 6 M.V. MARKETING PVT LTD 1,00,000/ - 4,00,000/ - 7 U.P. ELECTRICAL LIMITED 1,00,000/ - 4,00,000/ - 8 GEWAPUR WATER PURIFICATION PVT LTD 1,00,000/ - 4,00,000/ - 9 PARISHUD FINANCE CO PVT LTD 1,00,000/ - 4,00,000/ - 10 PITAMBRA SECURITIES LTD 1,00,000/ - 4,00,000/ - 11 S.R. CABLES PVT LTD 1,00,000/ - 4,00,000/ - SUB - TOTAL 38,00,0007 - 40,00,000/ - TOTAL 78,00,000/ - 12 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. 7.1. THE ASSESSEE-COMPANY FILED REPLY BEFORE A.O. AT ORIGINAL ASSESSMENT STAGE DATED 15 TH DECEMBER, 2008 SUBMITTING REPLY ALONG WITH DOCUMENTARY EVIDENCES I.E., CONFIRMATION FROM SHAREHOLDERS RESOLUTIONS, SHARE APPLICATION FORM, BANK STATEMENT OF INVESTORS, CERTIFICATE OF INCORPORATION, ROC ACTIVE STATUS REP ORT, I.T. DEPARTMENT E-CERTIFICATE, AFFIDAVIT OF RESPECTIVE COMPANIES AN D LATEST ASSESSMENT ORDERS IN THEIR CASES. THE A.O. ON ALL THESE DOCUME NTARY EVIDENCES WAS SATISFIED WITH REGARD TO EXPLANATION OF ASSESSE E-COMPANY REGARDING ALL THE SHARE APPLICANTS/INVESTORS EXCEPT IN THE CASE OF M/S. M.V. MARKETING PVT. LTD. THE A.O. ACCEPTED THE EXPLANATION OF ASSESSEE-COMPANY WITH REGARD TO GENUINE SHARE APPLI CATION MONEY FOR 10 PARTIES NOTED ABOVE AND IN CASE OF M/S. M.V. MARKETING PVT. LTD., MADE ADDITION OF RS.5 LAKHS. THE A.O. IN RE-A SSESSMENT ORDER DATED 28.03.2014 MADE ADDITION OF RS.25 LAKHS IN RE SPECT OF 05 INVESTOR COMPANIES WHICH WERE CONSIDERED AND EXAMIN ED IN ORIGINAL ASSESSMENT ORDER MENTIONED AT SL.NO.3, 4, 9, 10, 11 OF LIST REPRODUCED AT PAGE-11 OF THIS ORDER. IT IS WELL SET TLED LAW THAT ON MERE CHANGE OF OPINION OF THE A.O, CANNOT BE A GROUND FO R RE-ASSESSMENT AND THAT AMENDMENT OF SECTION 147 W.E.F. 01.04.1989 HAS NOT ALTERED 13 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. THE POSITION. WE RELY UPON THE DECISION OF THE FULL BENCH OF DELHI HIGH COURT IN THE CASE OF KELVINATOR OF INDIA LTD., 256 ITR 1 WHICH WAS CONFIRMED BY HONBLE SUPREME COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD., 320 ITR 561. DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF GARDEN SILK MILLS P. LTD. , 237 ITR 668, DECISION OF SUPREME COURT IN THE CASE OF CIT VS. FO RANER FRANCH 264 ITR 566. HONBLE SUPREME COURT IN THE CASES OF INDI AN OIL CORPORATION 159 ITR 956 (SC) HELD THAT NO CASE UNDER SECTION 148 IS MADE OUT WHEN THE FACTS WERE KNOWN ALL ALONG WITH T O THE REVENUE WHILE MAKING ORIGINAL ASSESSMENT AND IN CASE OF ASSOCIATED STONE INDUSTRY LIMITED 224 ITR 560 (SC) IT WAS HELD THAT ASSESSEE SHALL HAVE TO DISCLOSE ONLY THE PRIMARY FACTS. 7.2. THE FACTS OF THE CASE CLEARLY PROVE THAT ASSE SSEE-COMPANY FILED ALL THE DOCUMENTS BEFORE A.O. AT THE ORIGINAL ASSESSMENT STAGE AS REGARDS FRESH SHARE APPLICATION MONEY RECEIVED I N ASSESSMENT YEAR UNDER APPEAL ON WHICH A.O. WAS SATISFIED EXCEPT FOR RS.5 LAKHS. THE A.O. ALSO CONSIDERED REPORT OF INVESTIGATION WING A ND STATEMENTS OF SHRI SURENDRA KUMAR JAIN ETC., AT ORIGINAL ASSESSME NT STAGE. THEREFORE, A.O. FORMED HIS OPINION WITH REGARD TO S HARE APPLICATION 14 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. MONEY AT ORIGINAL ASSESSMENT STAGE. THEREFORE, THER E WERE NO JUSTIFICATION TO INITIATE RE-ASSESSMENT PROCEEDINGS ON THE SAME MATTER IN ISSUE MERELY ON THE BASIS OF THE REPORT O F THE INVESTIGATION WING ALREADY ON RECORD. IN THE PRESENT CASE, IT DOE S NOT APPEAR THAT A.O. APPLIED HIS MIND TO THE MATERIAL AVAILABLE ON RECORD OF ORIGINAL ASSESSMENT PROCEEDINGS. IT IS APPARENT FROM THE FAC T THAT DURING ASSESSMENT PROCEEDINGS, A.O. DID NOT CONFRONT THE A SSESSEE WITH ANY NEW MATERIAL OR EXAMINE ANY OTHER EVIDENCE OTHER TH AN WHAT WAS ALREADY AVAILABLE IN THE INITIAL ASSESSMENT ORDER. FURTHER, THE A.O. IN THE ORIGINAL ASSESSMENT HAS REFERRED TO VARIOUS STA TEMENTS RECORDED BY THE INVESTIGATION WING WHICH PERTAIN TO YEAR 200 3 AND 2004 WHICH WERE TAKEN INTO CONSIDERATION WHILE DECIDING THE IS SUE OF FRESH SHARE APPLICATION MONEY. THE ASSESSEE-COMPANY DISCLOSED A LL THE PRIMARY FACTS AT ORIGINAL ASSESSMENT STAGE ON WHICH REGULAR ASSESSMENT HAVE BEEN MADE. THEREFORE, INITIATION OF RE-ASSESSMENT P ROCEEDINGS ON MERE CHANGE OF OPINION WOULD NOT BE JUSTIFIED. 8. PROVISO TO SECTION 147 OF THE I.T. ACT PROVIDES THAT WHERE THE ASSESSMENT UNDER SECTION 143(3) HAS BEEN MADE F OR RELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THI S SECTION AFTER 15 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. THE EXPIRY OF 04 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASS ESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF FAILURE ON THE PA RT OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE T O NOTICE UNDER SECTION 142(1) OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT FOR THAT ASSESSM ENT YEAR. 8.1. IN THE PRESENT CASE, THE ASSESSEE FILED RETUR N OF INCOME UNDER SECTION 139(1) ORIGINALLY ON WHICH ASSESSMENT UNDER SECTION 143(3) HAS BEEN COMPLETED. THUS, 04 YEARS HAVE EXPI RED FROM THE END OF THE RELEVANT ASSESSMENT YEAR ON THE DATE OF REOP ENING OF THE ASSESSMENT ON 26 TH MARCH, 2013. THE ASSESSEE-COMPANY DISCLOSED ALL RELEVANT FACTS FULLY AND TRULY AT ORIGINAL ASSE SSMENT STAGE AS REGARDS SHARE APPLICATION MONEY WHICH IS ALSO MENTI ONED BY THE A.O. IN THE ORIGINAL ASSESSMENT ORDER INCLUDING MATERIAL COLLECTED BY INVESTIGATION WING OF RECEIVING ACCOMMODATION ENTRY BY ASSESSEE. THEREFORE, THERE IS NO FAILURE ON THE PART OF THE A SSESSEE-COMPANY TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR ASSESSMENT. NO TANGIBLE MATERIAL WAS FOUND AGAINST THE ASSESSEE -COMPANY BECAUSE RECEIVING SHARE APPLICATION MONEY WERE PART OF THE RECORD. 16 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. A.O. DID NOT MAKE ANY FURTHER ENQUIRY INTO THE MATT ER. THEREFORE, THE JUDGMENTS OF THE HONBLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE PR. CIT VS. OF RMG POLYVINYL (I) LTD., (SUPRA) AND CIT VS. MULTIPLEX TRADING & INDUSTRIAL CO. LTD., (SUPRA), SQUARELY AP PLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE. CONSIDERING THE ABOV E DISCUSSION, WE ARE OF THE VIEW THAT APART FROM THE ISSUE THAT RE-A SSESSMENT IS INITIATED ON MERE CHANGE OF OPINION, INITIATION OF RE-ASSESSMENT PROCEEDINGS BAD IN LAW BECAUSE OF CONDITIONS OF PRO VISO TO SECTION 147 HAVE NOT BEEN SATISFIED IN THE CASE OF THE ASSE SSEE-COMPANY. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE ORDE RS OF THE AUTHORITIES BELOW, AND QUASH THE INITIATION OF RE-A SSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE I.T. ACT. RESU LTANTLY, ALL ADDITIONS MADE IN THE ASSESSMENT ORDER STANDS DELET ED. 9. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 22 ND JANUARY, 2018 VBP/- 17 ITA.NO.6693/DEL./2017 M/S. GOEL EXIM PVT. LTD., NEW DELHI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT C BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.