M/s Alfa Radiological Centre Pvt. Ltd., Patiala V. ITO, Patiala

ITA 904/CHANDI/2012

• Counselvise Citation: 90421514 RSA 2012
• Duration Of Justice: 3 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-09-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 31-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: ASHOK GOYAL; SUDHIR SEHGAL
• Keywords: Reopening of assessment; Depreciation; Reason to believe
• Section: 147; 148; 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.904 /CHD/2012 (ASSESSMENT YEAR : 2003-04) AND ITA NO.905 /CHD/2012 (ASSESSMENT YEAR : 2004-05) M/S ALFA RADIOLOGICAL VS. THE INCOME TAX OFFICER, CENTRE PVT. LTD., # 1, WARD 4, JAGDISH ASHRAM ROAD, PATIALA. PATIALA. PAN: AADCA7768D (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI SUDHIR SEHGAL & ASHOK GOYAL RESPONDENT BY : SHRI S.K. MITTAL, DR DATE OF HEARING : 28.09.2015 DATE OF PRONOUNCEMENT : 13.10.2015 O R D E R PER RANO JAIN, A.M . : THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), PATIALA DATED 14.6.2012 FOR ASSESSMENT Y EARS 2003- 04 AND 2004-05. 2 2. SINCE THE ISSUE INVOLVED IS SIMILAR IN BOTH THE APPEALS, WE ARE ADJUDICATING THE APPEAL OF THE ASSE SSEE IN ITA NO.904/CHD/2012 FOR ASSESSMENT YEAR 2003-04 FIRST. ITA NO.904 /CHD/2012 : 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING INCOM E OF RS.NIL AS ON 30.7.2003. THE SAME WAS PROCESSED UN DER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (IN SHOR T THE ACT). THE PROCEEDINGS UNDER SECTION 147 OF THE AC T WERE INITIATED BY ISSUE OF NOTICE UNDER SECTION 148 OF T HE ACT. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETUR N AS WAS ORIGINALLY FILED. THE REASONS FOR REOPENING R ECORDED BY THE ASSESSING OFFICER READ AS UNDER : 'THE ASSESSEE FIRM IS RUNNING A DIAGNOSTIC CENTRE UN DER THE NAME & STYLE OF M/S ALPHA RADIOLOGICAL CENTRE (P) LTD. 1, J AGDISH ASHRAM ROAD, PATIALA AND FILED RETURN DECLARING NIL IN COME ON 21.08.2004 FOR THE ASSTT. YEAR 2004-05. THE RETURN W AS PROCESSED U/S I43(1)(A). DURING THE COURSE OF SURVEY U/S 133A CONDUCTED IN THIS CASE ON 25 TO 26.03.2010, SUPPRESSION OF RECEI PTS WERE FOUND ON THE BASIS OF FOLLOWING DISCREPANCIES: 'A KACHA REGISTER MAINTAINED BY THE RECEPTIONIST WA S FOUND IN WHICH A LIST OF PATIENTS VISITED ON THE DAY OF SURV EY ONLY WAS AVAILABLE. EARLIER DAYS' SUCH LISTS WERE FOUND DESTROYED. IN THIS REGISTER, THE AMOUNT OF FEE CHARGE D HAS BEEN SHOWN AT 1/1O TH OF THE ACTUAL FEE RECEIVED BY IGNORING ZERO DIGIT AS VERIFIED FROM THE REFERRED TEST SLIPS FOUND FROM THE BUSINESS PREMISES AS ALSO ADMITTED BY THE RECEPT IONIST. HOWEVER, THE RECEPTIONIST FURTHER ADDED THAT THE AVER AGE RECEIPTS OF THE ASSESSEE COMES TO RS.60000-70000 AP PROX. 3 PER DAY. A CASH OF RS. 54840/- WAS FOUND FROM THE R ECEIPT COUNTER WHICH WAS STATED TO HAVE BEEN RECEIVED UPTO 1. 45 P.M. ON THE DAY OF SURVEY AND THE RECEPTIONIST IN HIS ST ATEMENT ADMITTED CATEGORICALLY THAT THESE RECEIPTS REPRESENT AMOUNTS RECEIVED FROM THE PATIENTS WHO VISITED ONLY ON THE DAY OF SURVEY, WHEREAS CASH MEMOS WERE ISSUED BY THAT TIME FOR RS. 20,280/- ONLY. THUS, A SUM OF RS. 34,560/- WAS FOUN D DELIBERATELY UNACCOUNTED FOR UPTO 1.45 P.M. ON 25.0 3.10 IN THE FORM OF DAILY SUPPRESSION OF RECEIPTS. IT SHOWS THAT THE ASSESSEE IS DECLARING RECEIPT TO THE EXTENT OF ONLY 37% OF THE ACTUAL RECEIPTS AND 63% HAVE BEEN SUPPRESSED AS THE ASS ESSEE HAVE BEEN SHOWING ITS RECEIPTS OF RS. 20000/-APPROX . PER DAY AT ITS SWEET WILL AND NOT ON ACTUAL RECEIPT BASIS.' FROM THE ABOVE FACTS, THE MODUS-OPERANDI OF THE ASSES SEE TO SUPPRESS RECEIPTS IS VERY MUCH CLEAR. FURTHER, DURING THE COURSE OF SURVEY OPERATIONS, ST ATEMENT OF DR. SANDEEP GARG, ONE OF THE DIRECTORS, WAS RECORDE D IN WHICH HE STATED THAT NO PATIENT REGISTER/CASE REGISTER HAS B EEN MAINTAINED BY THE ASSESSEE COMPANY. HE FURTHER STATED THAT THE ASSESSEE DOES NOT MAINTAIN ANY BOOKS OF ACCOUNTS AT REGISTERED OF FICE OF THE COMPANY EXCEPT CASH MEMOS ISSUED TO THE PATIENTS. E VEN THE ASSESSEE FAILED TO PRODUCE THE CASH MEMOS FOR THE F .Y. 2009-10 EXCEPT FOR THE PERIOD 3.9.09 TO 25.3.10 ONLY. DR. S ANDEEP GARG ALSO STATED THAT THE BOOKS OF ACCOUNTS OF EARLIER 6 YEAR S ARE LYING WITH HIS C.A. SH. ANIL JINDAL WHEREAS SH. ANIL JINDAL CLARIF IED THAT NO RECORD INCLUDING BOOKS OF ACCOUNTS OF THE PRECEDING YEARS OF THE CO MPANY ARE LYING IN HIS OFFICE. APART FROM IT, THE RECEPTIONIS T WHO IS WORKING WITH THIS COMPANY SINCE 2002 HAS ADMITTED THAT HE IS PRE PARING A LIST OF PATIENTS DAILY IN THE KACHA REGISTER, AS FOUND DUR ING SURVEY OPERATIONS, SINCE HIS JOINING THIS COMPANY IN 2002 AND THIS MODUS- OPERANDI HAS BEEN LEARNT BY HIM FROM HIS PREDECESSOR. FROM THESE FACTS, IT IS CLEAR THAT THE ABOVE MODUS-OPERANDI OF SUPP RESSION OF RECEIPTS IS CONTINUED IN THE EARLIER YEARS ALSO. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN RECEIPTS OF RS. 33,36,590-. BY APPLYING THE SAME RATIO OF SUPPRE SSION OF RECEIPTS I.E. 63% DURING THE YEAR UNDER CONSIDERATI ON, THE 4 SUPPRESSED RECEIPTS FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2003-04 WORK OUT TO RS. 56,81,220/-. I HAVE, THEREF ORE, REASONS TO BELIEVE THAT INCOME OF RS. 56,81,220/- HAS ESCAPED ASSESSMENT FOR THE ASSTT YEAR 2003-04. 3. ON THE BASIS OF THE ABOVE SAID REASONS, THE PROCEEDINGS UNDER SECTION 148 OF THE ACT WERE INITI ATED. THE ASSESSEE RAISED OBJECTION AGAINST THE REOPENING AND ALSO MADE ITS SUBMISSIONS ON THE MERITS OF THE CASE. REJEC TING ALL THE CONTENTIONS OF THE ASSESSEE, THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE HAD SHOWN GROSS RECEIPTS OF RS.33 ,36,590/- DURING THE RELEVANT ASSESSMENT YEAR. BY APPLYING A RATIO OF 63%, THE SUPPRESSION OF RECEIPTS WORKS OUT TO RS.56 ,81,220/. HOWEVER, TAKING LENIENT VIEW HE ESTIMATED THE RECEI PTS BY APPLYING 50% AND HENCE, ESTIMATED THE GROSS RECEIPT S AT RS.33,36,590/-. FURTHER, DISALLOWANCE OF RS.1,54, 731/- WAS MADE ON ACCOUNT OF EXPENSES AND DEPRECIATION ON CAR AND SCOOTER CLAIMED BY THE ASSESSEE. IN THIS WAY, THE ASSESSMENT AT AN INCOME OF RS.15,65,660/- WAS MADE. 4. THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT (APPEALS), WHEREBY DETAILED SUBMISSIONS WERE MADE A GAINST THE REOPENING UNDER SECTION 148 OF THE ACT AND ALSO ON THE MERITS OF THE CASE. THE LEARNED CIT (APPEALS) DID NOT FIND HIMSELF IN AGREEMENT WITH THE SUBMISSIONS OF THE LE ARNED COUNSEL FOR THE ASSESSEE AND HELD THAT THE ASSESSIN G OFFICER HAD DEFINITE REASON TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT IN THE YEAR CONCERNED. HE WAS OF THE V IEW THAT THE FINDING OF EXCESS CASH AT COUNTER, ADMISSION BY THE RECEPTIONIST THAT ONE ZERO IS REDUCED IN THE REGIST ER, NON- 5 AVAILABILITY OF COMPLETE CASH MEMOS BEING ISSUED ON LY ON DEMAND AND OTHER FACTS DISCOVERED DURING THE COURSE OF SURVEY, DEFINITELY POINT TOWARDS SCHEME OF TAX EVAS ION. FURTHER, IT WAS OBSERVED THAT IN THE STATEMENT RECO RDED DURING THE COURSE OF SURVEY OF SHRI KAPIL KUMAR, A RECEPTIONIST OF THE COMPANY, HE HAS EXPLAINED THE M ODUS OPERANDI OF MENTIONING CHARGES RECEIVED FROM THE PA TIENTS. RELYING ON THE JUDGMENT OF THE HON'BLE SUPREME COUR T IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD., 291 ITR 500 TO THE EFFECT THAT AT THE STAGE OF ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT, THE ONLY QUESTION TO BE SEE N IS WHETHER THERE WAS RELEVANT MATERIAL ON THE BASIS OF WHICH A REASONABLE PERSON COULD HAVE FORMED THE REQUISITE BELIEF. TH E LEARNED CIT (APPEALS) CONFIRMED THE REOPENING SO MADE BY TH E ASSESSING OFFICER. 5. AGGRIEVED BY THE ABOVE SAID ORDER, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US, RAISING THE GROUNDS AG AINST THE INVOKING OF PROVISIONS OF SECTION 147 OF THE ACT AS WELL AS ON MERITS. 6. THE GROUND NO.1 IS AGAINST THE REOPENING UNDER SECTION 148 OF THE ACT. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SURVEY WAS CONDUCTED AS ON 25.3.2010 AT THE BUS INESS PREMISES OF THE ASSESSEE. THE SURVEY TEAM DURING THE COURSE OF SURVEY DID NOT FIND ANY MATERIAL WITH REG ARD TO SUPPRESSION OF RECEIPTS FOR ASSESSMENT YEAR 2003-04 AND THE 6 CASE HAS BEEN REOPENED ONLY ON THE BASIS OF SUBMISS ION OF THE RECEPTIONIST SHRI KAPIL KUMAR, WHICH WAS RECORDED D URING THE COURSE OF SURVEY. THE ARGUMENTS OF THE LEARNED COU NSEL FOR THE ASSESSEE WAS THAT THE REASONS AS RECORDED BY TH E ASSESSING OFFICER CAN BE SAID TO BE RELEVANT IF AT ALL FOR ASSESSMENT YEAR 2010-11 BUT NOT FOR ASSESSMENT YEAR 2003-04 I.E. MANY YEARS EARLIER, PARTICULARLY WHEN NO COGEN T MATERIAL IS ON RECORD. IT WAS ALSO SUBMITTED THAT THE REASO NS ARE RECORDED ONLY ON THE BASIS OF ONE LOOSE SLIP AND ON THE STATEMENT OF SHRI KAPIL KUMAR. RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF C IT VS. KHADER KHAN AND SON (2013) 352 ITR 480 (SC), WHEREB Y THE HON'BLE APEX COURT DISMISSED THE APPEAL OF THE DEPA RTMENT AND CONFIRMED THE DECISION OF THE HON'BLE MADRAS HI GH COURT IN THE CASE OF CIT VS. KHADER KHAN AND SON (2008) 300 ITR 157 (MAD) IN WHICH IT HAS BEEN HELD THAT THE STATEM ENT RECORDED AT THE TIME OF SURVEY DOES NOT HAVE ANY EV IDENTIARY VALUE AND AS SUCH, CANNOT BE MADE THE BASIS FOR ADD ITION. THUS, ON THE BASIS OF STATEMENT SO RECORDED, NO ADD ITION CAN BE SUSTAINED. THERE CANNOT BE VALID REOPENING OF T HE CASE ON THE BASIS OF SUCH STATEMENT. RELIANCE WAS ALSO PL ACED ON A NUMBER OF OTHER JUDGMENTS, PARTICULARLY IN THE CASE OF RAMKRISHNA RAMNATH VS. ITO, 77 ITR 995 (BOM) AND IN DIA FINANCE & CONSTRUCTION CO. PVT. LTD. VS. DCIT, 200 ITR 710 (BOM) FOR THE PROPOSITION THAT THE MATERIAL FOUND F OR ONE YEAR CANNOT BE THE BASIS OF REOPENING THE CASE IN ANY OT HER YEAR. EVEN OTHERWISE, IT WAS SUBMITTED THAT THE FINANCIAL YEAR ENDING 2001-02 WAS THE FIRST YEAR OF THE COMPANY AN D HOW 7 COULD THE ASSESSING OFFICER RELATE SUCH ALLEGED SUP PRESSION RELATING TO THE EARLIER YEAR, SPECIALLY WHEN WHAT W AS STATED BY SHRI KAPIL KUMAR WAS ONLY FOR THE SAKE OF CONVENIEN CE, HE HAD BEEN RECORDING THE RECEIPTS IN A SHORT FORM ON A PI ECE OF PAPER AND NO RECEIPTS ARE RECORDED IN THE REGULAR BOOKS O F ACCOUNT. ON THE BASIS OF THESE SUBMISSIONS, IT WAS PRAYED TH AT REOPENING INITIATED BY THE ASSESSING OFFICER BY ISS UE OF NOTICE UNDER SECTION 148 OF THE ACT MAY BE HELD TO BE INVA LID. 8. THE LEARNED D.R. RELIED UPON THE ORDERS OF THE ASSESSING OFFICER AS WELL OF THE LEARNED CIT (APPEA LS). 9. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE SURVEY OPERATIONS WE RE CARRIED OUT AT THE PREMISES OF THE ASSESSEE AS ON 26.3.2010 I.E. RELATING TO ASSESSMENT YEAR 2010-11. THE MATERIAL FOUND DURING THE COURSE OF SURVEY, WHETHER THESE ARE LOOS E SLIPS OR THE STATEMENT RECORDED BY THE RECEPTIONIST, ALL REL ATE TO THAT YEAR ONLY. THE YEAR UNDER CONSIDERATION BEFORE US IS THE ASSESSMENT YEAR 2003-04. THERE IS NO REFERENCE OF ANY MATERIAL FOUND DURING THE COURSE OF SURVEY RELATING TO THE SAID ASSESSMENT YEAR. BEFORE THE ACTION UNDER SECTION 147 OF THE ACT CAN BE TAKEN FOR REOPENING THE ASSESSMENT, THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. AFTER PE RUSING THE REASON RECORDED, WE DO NOT FIND OURSELVES IN AGREEM ENT WITH THE ASSESSING OFFICER OR THE LEARNED CIT (APPEALS) THAT THE 8 ASSESSING OFFICER HAD REASONS TO BELIEVE THAT THE I NCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT IN RESPECT OF ASSESSMENT YEAR 2003-04. SECTION 147 OF THE ACT D EFINES THE POWER AND JURISDICTION OF THE ASSESSING OFFICER FOR MAKING AN ASSESSMENT WHILE SECTION 148 OF THE ACT PROVIDES FO R INITIATION OF REOPENING BY ISSUE OF NOTICE. IT IS A TRITE LAW BY NOW THAT SECTION 147 OF THE ACT EMPOWERS THE ASSESSING OFFIC ER TO ASSESS OR REASSESS THE INCOME CHARGEABLE TO TAX IF HE HAS REASONS TO BELIEVE THAT THE INCOME FOR ANY ASSESSME NT YEAR HAS ESCAPED THE ASSESSMENT. THE POWERS GIVEN TO TH E ASSESSING OFFICER UNDER THIS SECTION ARE VERY WIDE BUT ARE ALSO ATTACHED WITH CERTAIN OVERRIDING CONDITIONS. THE ASSESSING OFFICER CAN ASSUME JURISDICTION UNDER THE SAID PROV ISION IF HE HAS SUFFICIENT MATERIAL BEFORE HIM. IT IS ALSO SET TLED LAW THAT THE ASSESSING OFFICER CANNOT FORM BELIEF ON THE BAS IS OF HIS WHIM AND FANCY AND THE EXISTENCE OF MATERIAL MUST B E REAL. FURTHER, THERE MUST BE NEXUS BETWEEN THE MATERIAL A ND ESCAPEMENT OF INCOME. AFTER OBSERVING THAT THE BAS IS OF REOPENING IS THE SURVEY CONDUCTED IN A LATER YEAR T HAT TOO AROUND SIX YEARS AFTER THE END OF THE RELEVANT ASSE SSMENT YEAR, WE FIND THAT THE RELIANCE PLACED BY THE LEARN ED COUNSEL FOR THE ASSESSEE ON TWO JUDGMENTS OF THE HON'BLE BO MBAY HIGH COURT IS NOT OUT OF PLACE. 10. IN THE CASE OF RAMKRISHNA RAMNATH (SUPRA) REL ATING TO ASSESSMENT YEAR 1960-61, CERTAIN MATERIAL WAS FO UND IN ASSESSMENT YEAR 1961-62 WHICH FORMED THE BASIS OF R EOPENING BY THE ASSESSING OFFICER. AFTER CONSIDERING THE P ROVISIONS OF 9 THE ACT AND SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THE HON'BLE BOMBAY HIGH COURT HELD IN VERY CLEAR TERMS THAT THE INFORMATION ON WHICH THE NOTICE UNDE R SECTION 147 OF THE ACT IS ISSUED, MUST RELATE TO THE ASSESS MENT YEAR TO WHICH THAT NOTICE RELATE. THOUGH, OF COURSE, IT MI GHT VERY WELL HAVE BEEN OBTAINED AT ANY TIME SUBSEQUENT THERETO A ND MAY HAVE COME TO THE KNOWLEDGE OF THE ITO IN THE COURSE OF ASSESSMENT PROCEEDINGS RELATING TO A SUBSEQUENT YEA R. IF FROM THE INFORMATION WHICH RELATES TO A SUBSEQUENT ASSESSMENT YEAR, THE ASSESSING OFFICER SOUGHT TO RE SORT TO PROCEEDINGS OF REOPENING AGAINST THE ASSESSEE IN RE SPECT OF AN EARLIER YEAR, HE COULD NOT BE SAID TO HAVE HAD REA SON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAD ESCAP ED ASSESSMENT IN RESPECT OF AN EARLIER YEAR. 11. IN OTHER JUDGMENT CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE CASE OF INDIA FINANCE & CONSTRU CTION CO. PVT. LTD. (SUPRA) THE HON'BLE BOMBAY HIGH COURT HAS HELD THAT BEFORE ISSUING NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER MUST HAVE DEFINITE REASON TO BELI EVE THAT SOME INCOME HAD ESCAPED ASSESSMENT FOR THE ASSESSME NT YEAR IN QUESTION, NOTICE ISSUED ON MERE SUSPICION WOULD BE WITHOUT JURISDICTION. 12. ON EXACTLY THE SAME FACTUAL MATRIX AS IS IN TH E CASE IN HAND, WE FIND THAT THERE IS A JUDGMENT DELIVERED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS.. G UPTA ABHUSHAN (P) LTD. (2008) 312 ITR 166 (DEL). IN THI S CASE, IT WAS NOTED THAT SURVEY WAS CONDUCTED ON 7.3.2002, WH ILE THE 10 CASE RELATES TO ASSESSMENT YEAR 1999-2000. THE DA TE OF SURVEY WAS SUBSEQUENT TO THE YEAR IN QUESTION. CE RTAIN RENOVATION EXPENSES WERE NOT BOOKED BY THE ASSESSEE AS FOUND DURING THE COURSE OF SURVEY. THE HON'BLE HIGH COUR T HELD THAT THE FACT THAT THE RENOVATION EXPENSES HAD NOT BEEN BOOKED IN THE FINANCIAL YEAR ENDING 31.3.2002 DOES NOT BY ITSELF INDICATE THAT THE RENOVATION WORK HAD BEEN C ARRIED ON IN THE EARLIER YEARS ALSO AND THE EXPENSES IN RESPECT OF THE SAME HAD NOT BEEN BOOKED IN EARLIER YEARS ALSO. IN VIEW OF THIS, IT WAS HELD THAT THE DETECTION OF EXCESS STOCK OR UNAC COUNTED EXPENDITURE ON RENOVATION OF BUSINESS PREMISES AT T HE TIME OF SURVEY UNDER SECTION 133A OF THE ACT IN A SUBSEQUEN T YEAR COULD NOT CONSTITUTE THE REASON TO BELIEVE THAT SUC H DISCREPANCY EXISTED IN EARLIER YEAR ALSO. THEREFOR E, REOPENING OF ASSESSMENT WAS HELD TO BE INVALID. 13. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ARGUMENTS MADE BY BOTH THE PARTIES AND PERUSAL OF T HE JUDGMENTS OF VARIOUS HIGH COURTS AND THAT OF HON'BL E SUPREME COURT, WE FIND THAT IN THE PRESENT CASE THE ASSESSING OFFICER HAS NOT ASSUMED JURISDICTION UNDER SECTION 148 OF THE ACT AS PER LAW. WHILE FORMING THIS OPINION WE ARE ALSO GUIDED BY THE JUDGMENT OF HON'BLE JURISDICTIONAL PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAI GOPAL MEHRA VS. ITO & ANOTHER (1969) 74 ITR 594 (P&H). THE HON'BLE COURT HELD A S UNDER : IF THE BELIEF REQUISITE UNDER THAT PROVISION IS FOR MED ON VARIOUS GROUNDS SOME OF WHICH ARE RELEVANT, THE ASSESSMENT PROCEEDINGS FOR THE ACCOUNTING PERIOD TO WHICH 11 THE RELEVANT NON- DISCLOSURE RELATES CAN VALIDLY BE REOPENED BY THE COMPETENT ITO. A NOTICE UNDER S. 34 WOULD BE VALID ONLY IF THE FACTS OR FIGURES ON THE NON-DISCL OSURE OF WHICH THE REQUISITE BELIEF IS BASED: EITHER ADMITTEDLY RE LATE TO THE ASSESSEE CONCERNED OR ARE AT LEAST ALLEGED TO RELAT E TO HIM; AND THE NON-DISCLOSED FACTS OR FIGURES HAVE RELEVAN CE TO THE INCOME OF THE ACCOUNTING PERIOD IN RESPECT OF WHICH THE ASSESSMENT PROCEEDINGS ARE SOUGHT TO BE REOPENE D. 14. IN VIEW OF THE ABOVE, THE RE-ASSESSMENT PROCEE DINGS UNDER SECTION 147 OF THE ACT INITIATED BY THE ASSES SING OFFICER BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT ARE NOT VALID IN THE PRESENT CASE. THEREFORE, NOTICE UNDER SECTION 148 OF THE ACT AND PROCEEDINGS UNDER SECTION 147 OF THE ACT AR E HEREBY QUASHED. 15. BEFORE PARTING, THIS IS ALSO PERTINENT TO NOTE THAT IN THE PRESENT CASE ONE OF THE BASIS FOR REOPENING IS THE STATEMENT OF SHRI KAPIL KUMAR RECORDED AT THE TIME OF SURVEY. THE STATEMENT MADE AT THE TIME OF SURVEY DOES NOT H AVE EVIDENTIARY VALUE, THEREFORE, CANNOT BE THE BASIS F OR REOPENING. RELIANCE IS PLACED ON THE JUDGMENT OF H ON'BLE SUPREME COURT IN THE CASE OF KHADER KHAN AND SON ( SUPRA) AND ALSO THAT OF HON'BLE KERALA HIGH COURT IN THE C ASE OF PAUL MATHEWS & SONS VS. CIT (2003) 263 ITR 101 (KER). O N THIS BASIS ALSO THE REOPENING INITIATED BY THE ASSESSING OFFICER IS HELD TO BE BAD IN LAW. 16. SINCE WE HAVE QUASHED THE ASSESSMENT MADE BY REOPENING UNDER SECTION 147 OF THE ACT, WE DO NOT F IND ANY 12 NEED TO ADJUDICATE THE ISSUES RAISED BY THE ASSESSE E ON MERITS OF THE CASE. 17. THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.905 /CHD/2012 : 18. SINCE THE ISSUE IS THE SAME AS HAS BEEN DISCUS SED IN ITA NO.904/CHD/2012, FOLLOWING OUR FINDINGS GIVEN I N ITA NO.904/CHD/2012, WE ALLOW THE APPEAL OF THE ASSESSE E IN ITA NO.905/CHD/2015 ALSO. 19. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF OCTOBER, 2015. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER DATED : 13 TH OCTOBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 13