SWATI MALOVE DIVETIA V. INCOME TAX OFFICER WARD7(1)(2)

SCA/7628/2018

AI Insights

The case involves Swati Malove Divetia, who challenged a notice issued by the Income Tax Officer to reopen her income tax assessment for the year 2015-16. The notice was based on the observation that the petitioner had deposited a significant amount of cash post-demonetization, which was not in line with her declared income. The petitioner argued that the deposits were from her own bank withdrawals, which were disclosed and matched the deposits. The court examined the validity of the reasons provided for reopening the assessment and found them to be based on an erroneous premise, leading to the quashing of the notice.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 688137 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 10-09-2018
• Assessment Year: misc
• Other Referred Cases: Gujarat Power Corporation Ltd vs. Assistant Commissioner of Income Tax
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MAUNA BHATT
• Assessee Lawyers: B S SOPARKAR
• Keywords: Cash deposit; Demonetization; Reopening of assessment; Unexplained income
• Section: 147; 143(1)

Judgement Text

"C/SCA/7628/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 7628 of 2018 ========================================================== SWATI MALOVE DIVETIA Versus INCOME TAX OFFICER WARD7(1)(2) ========================================================== Appearance: MR B S SOPARKAR(6851) for the PETITIONER(s) No. 1 MRS MAUNA M BHATT(174) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE B.N. KARIA Date : 10/09/2018 ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner has challenged a notice dated 17.01.2018 issued by the respondent-Assessing Officer to re-open the petitioner's assessment for the assessment year 2015-16. 2. Brief facts are as under: Petitioner is an individual and is employed in a bank. For the assessment year 2015-16, the petitioner had filed the return of income and declared total income of Rs. 9.83 lacs (rounded off). Such return was accepted by the Assessing Officer under section 143(1) of the Income Tax Act, 1961 ['the Act' for short] without scrutiny. To re-open such assessment, he recorded following reasons and issued impugned notice: Page 1 of 6 C/SCA/7628/2018 ORDER “It is noticed that the assessee has deposited Rs. 17,86,000/- post demonetization. Further on verification of return of income for the A.Y. 2015-16 assessee had shown income of Rs. 9,86,230/- only and further on verification of return of income it does not justify cash deposit of Rs. 17,86,000/- in a short period i.e. post demonetization and hence the assessee had regular source of income which is undisclosed to the department. Therefore, I have reason to believe and satisfied that assessee has taxable income during A.Y. 2015-16 which has not disclosed to the department and income has escaped assessment within the meaning of section 147 of the Income Tax Act.” 3. The petitioner raised objections to the notice of reopening under communication dated 09.03.2018. Such objections were rejected by the Assessing Officer by an order dated 09.04.2018. 4. Learned counsel for the petitioner submitted that the reasons recorded by the Assessing Officer lacked validity. There was no basis to even prima facie believe that income chargeable to tax in case of the assessee had escaped assessment. Merely because the assessee deposited some cash amounts post demonetization of currency would not ipso facto mean escapement of income chargeable to tax. Even if cash deposits were made, there was no indication that the same related to the income, needed to be assessed for the assessment year in question. The reasons are thus invalid, vague and unsustainable. Counsel submitted that before issuing notice, the Assessing Officer had raised certain queries with respect to the assessee's cash deposits. The assessee had replied to such Page 2 of 6 C/SCA/7628/2018 ORDER queries by filing reports pointing out that the amount deposited post demonetization was withdrawn from the assessee's disclosed bank accounts. Such withdrawals were also reflected in the assessee's accounts. Counsel submitted that withdrawal entry of Rs. 2.84 lacs from assessee's bank account No. 03260100000133 of Bank of Baroda was not indicated therein due to oversight. If such additional amount is taken into account, the total withdrawals would be far in excess of the assessment of the assessee during the said period. Even without the aid of this missing entry, the assessee's withdrawals and deposits matched. 5. On the other hand, learned counsel Ms. Bhatt for the department opposed the petition contending that no scrutiny assessment was carried out in case of the assessee. The Assessing Officer has recorded proper reasons. At this stage, the Court would not examine the sufficiency of such reasons. The reasons being valid, reopening of assessment should be permitted. 6. We may recall, in the reasons recorded by the Assessing Officer for issuing notice for reopening, he noted that the assessee had deposited a sum of Rs. 17.86 lacs post demonetization. Upon verification of the reports for the year under consideration he noted that the assessee had shown the income of Rs. 9.86 lacs. Upon further verification of the return, he was of the opinion that the same does not justify Page 3 of 6 C/SCA/7628/2018 ORDER cash deposit of Rs. 17.86 lacs in a short period post demonetization. He was therefore of the opinion that the assessee had regular source of income which was not disclosed to the department. 7. In the present case, the challenge to the notice of reopening is in case of a return which was accepted without scrutiny. Under such circumstances, as is well settled, the concept of change of opinion would not apply since no scrutiny assessment having taken place. The Assessing Officer cannot be stated to have formed an opinion. Nevertheless, as held by this Court in case of Gujarat Power Corporation Ltd vs. Assistant Commissioner of Income Tax reported in 350 ITR 266, the concept of the Assessing Officer having reason to believe that income chargeable to tax had escaped assessment is continued to hold the field. In this context, we may examine the materials on record more minutely. 8. In the present case, the Assessing Officer had raised certain queries with the assessee before issuing the impugned notice. In such queries, he pointed out to the assessee that the department had received information showing total cash deposit of Rs. 17.86 lacs by her during the period between 09.11.2016 and 30.12.2016. She was asked to give her response by submitting on-line reply. She gave such details in prescribed format in two separate reports. In first such report, she showed the cash withdrawn from the bank account of Page 4 of 6 C/SCA/7628/2018 ORDER Rs. 1,39,460/- and the cash deposited in the account between 09.11.2016 to 30.12.2016 of Rs. 2 lacs. She gave precise details of six different withdrawals which totaled to the said sum of Rs. 1,39,460/-. In second such report, she showed a total cash withdrawal of Rs. 15,85,160/- and gave details of as many as 20 withdrawals from a bank account which totaled to the said sum of Rs. 15,85,160/-. She showed her cash deposits during the crucial period at Rs. 15,86,000/-. Department has produced such reports of the petitioner at Annexure R2 along with an affidavit dated 05.07.2018. Counsel for the petitioner pointed out that the last page of this document is missing. He therefore produced the correct document which is taken on record. 9. The case of the petitioner thus all along has been that the entire amount, which was deposited by the petitioner in the bank account post demonetization, was withdrawn from her accounts which was disclosed to the department. This is what she had stated in their objections to the notice of reopening. In the present petition also, the contentions of the petitioner has been that the entire amount was withdrawn since January 2016 and came to be deposited post demonetization. 10. Reason recorded by the Assessing Officer must be seen in light of such facts. We are not for a moment judging sufficiency of the reasons enabling the Assessing Officer to form a belief that income chargeable to tax had escaped Page 5 of 6 C/SCA/7628/2018 ORDER assessment. We are testing the reasons on the basis of material which was available with him. In pre-notice queries, the Assessing Officer had asked the assessee to explain the source of the cash deposits post demonetization. The assessee disclosed such source being her own bank accounts and their withdrawals matching quite closely to the deposits which withdrawals were made within the close proximity of the deposits. If the Assessing Officer had any reason to discard such disclosures and still form a belief that the deposits were from the sources not indicated by the assessee, nothing of the sort has come in the form of reasons recorded. In fact, the reasons recorded completely ignored the Assessing Officer's query and the response made by the assessee to such queries. In other words, the Assessing Officer in the reasons recorded has simply kept aside the assessee's explanation for the availability of cash on hand for deposit post demonetization. The reasons thus clearly lacked validity and proceeded on erroneous premise. 11. Impugned notice is therefore quashed. Petition is allowed and disposed of. (AKIL KURESHI, J) (B.N. KARIA, J) JYOTI V. JANI Page 6 of 6 "