SURENDRAKUMAR H CHAPLOT,MUMBAI vs. ITO WD 18(3)(4), MUMBAI

This appeal by the assessee is directed against the order of learned CIT(A) dated 20.10.2016 and pertains to A.Y. 2009-10.

2. The grounds of appeal

read as under :-

1. On the facts and circumstances, the Ld. CIT(A) is not justified in confirming the jurisdiction u/s.147 of the IT Act and service of reasons recorded.

2. On the facts and circumstances, the Ld. CIT(A) is not justified in confirming the addition of Rs. 29,95,510/- made by AO being 12.5% of alleged suspicious supplies. He/She has not appreciated the fact that the AO rejected book result u/s 145 (3) an in that event sec. 144 comes into play which was not applied by AO.

3. This appeal was earlier decided by the Tribunal vide order dated 19.1.2018. The Tribunal had reduced the disallowance from 12.5% to 8%. However, the tribunal had not adjudicated the issue of reopening. Hence, upon assessee’s Miscellaneous Application the order was recalled for the purpose of adjudicating only the issue of reopening not adjudicated earlier. Pursuant to the above recall the issue of reopening is being adjudicated.

2 Surendrakumar H. Chaplot

4. I have heard both the counsel and perused the records. I may gainfully refer to the order of learned CIT(A) wherein he has dismissed the challenge of the assessee to the reopening as under :- “3.1 The appellant filed his return of income on 28.9.2009 for assessment year 2009-10 declaring the total income of Rs.5,25,570/-. The return was processed under section 143(1) of the Income Tax Act, 1961. The assessing officer has received information from the investigation wing of the sales tax department through the Investigation wing of the Income Tax Department, Mumbai about certain accommodation entry providers/bogus suppliers. These entry providers have given accommodation entries for purchases to various beneficiaries. The information in possession of the assessing officer is that the appellant is one such beneficiary who had taken entries to the tune of Rs.2,39,64,052/- from seven parties as under :-

Sr.No. Name of the Party F.Y. Amount

TOTAL 2,39,64,052/- 3.1.1 Based on this information, the assessing officer had reason to believe that income had escaped assessment in the appellant's case and issued notice under section 148 dated 7.3.2014 which was duly served on the assessee. The assessing officer also mentioned at para 2 of the assessment order that the reasons recorded for reopening were also supplied to the assessee.

3.2. During the course of appellate proceedings the learned counsel for the appellant raised the issue that the reasons recorded for reopening were not supplied to the appellant during the course of assessment proceedings. Accordingly, a letter was addressed by the undersigned to the assessing officer to give clarification on the issue. The assessing officer, vide his letter dated 25.8.2016 replied that the appellant has been supplied with the reasons recorded for reopening vide his office letter dated 26.6.2014. A copy of the same along with the reasons recorded was also enclosed to his letter. He had also furnished copies of the order sheet of the file which had all the entries of the hearings. Therefore, it is clear that the assessing officer had 3 Surendrakumar H. Chaplot furnished the reasons recorded for reopening to the appellant. The report of the assessing officer was forwarded to the appellant. The learned counsel for the appellant responded by saying that it was only the covering letter which was received by him and the reasons were never supplied to him. But there is no evidence furnished by him to show that the reasons were not supplied to him. Of course there will not be any direct evidence which can be furnished but simple logic shows that if the appellant has not received the reasons and has merely received the covering letter, the logical corollary would be that he would write to the assessing officer mentioning the same and requesting for reasons. However, this act on the part of the assessee is completely absent. Further the AR of the assessee has appeared before the assessing officer on various occasions for hearings but has not raised this issue even once. He had cooperated in all the hearings and had submitted the information requested for by the assessing officer. If he was not aware of the reasons recorded how could he submit all the relevant information? Moreover, if he is so particular, he would have certainly asked for the reasons again in writing. It is the learned counsel's habit to put every trivial detail in writing and therefore it is surprising, nay, shocking to see that the learned counsel has not given a reminder letter to the assessing officer for supply of the reasons recorded. In any case, the assessing officer has given a copy of the letter addressed to the assessee, supplying the reasons recorded and has also made a mention of the same in the assessment order. Therefore, it can be safely accepted that the assessing officer has supplied the reasons recorded to the assessee and the assessee is merely making a baseless allegation at the appellate stage.

3.2.1. The learned counsel for the appellant also alleged that the AO, without application of mind, mechanically reopened the assessment after receipt of intimation from the DGIT (INV), Mumbai. According to him, the AO has not arrived at his independent opinion of escapement of income. He had relied on the decisions of honourable Supreme Court in the case of a CIT vs. Dhariya construction which is not at all relevant to the facts of the present case.

3.3. Section 147 of the Income Tax Act, 1961 is reproduced as under:

“If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, 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 this section, or recomputed the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year."

3.3.1. The section merely says that the AO has to have reason to believe that any income chargeable to tax has escaped assessment. Reason to believe can be on the basis of any information which comes to his possession or knowledge. This information is more than enough for any reasonable person to form a reason to believe that income has escaped assessment.

4 Surendrakumar H. Chaplot Further, the information is not anonymous information but authenticated information received from a government department. The AO or any reasonable person in his place would not ignore or over look this kind of information. If the AO is not satisfied with the reason, he would not have issued notice u/s.148. The very fact that reasons are recorded and notice u/s.148 is issued goes to show that the AO has applied his mind and satisfied himself about the reopening of the case. The reasons recorded are not vague and scanty but precise and concrete. In this case, the information has come from the Investigation wing of the same department with supporting statements and modus operandi. There is no reason or occasion to disbelieve this information. Besides, what the Act envisages is that the AO should only have a reason to believe to reopen a case. He need not establish beyond doubt that there is escapement before issuing the notice. This can be done at the time of assessment but not at the time of issue of notice. Reliance is placed on the following judgements :

1) Rohilkhand Educational Charitable Trust vs. CCIT and Others 365 ITR 233(AH.) wherein the Hon'ble High Court held AO should have relevant and credible material with him to form requisite reason to believe that income of assessee has escaped assessment. Material available on record has rational connection and relevant bearing on such formation of belief for issuing valid notices for re-assessment - sufficiency or correctness of material was not to be considered at this stage.

2) Sun Pharmaceuticals Industries Ltd. Vs. DCIT 353 ITR 474 (Guj.) where the Hon'ble High Court held formation by belief by AO is essentially within his subjective satisfaction - at the stage of issue of notice, only question is whether there was relevant material on which reasonable person could have formed requisite belief.

3) N.K. Industries Ltd. vs. ITO 362 ITR 542 (Guj.) where the Hon'ble HC held if a particular issue is brought to the notice of the AO by audit party and AO of his /her application of mind finds this ground as valid, reopening of assessment cannot be quashed merely because such ground was brought to the notice of AO by the audit party.

3.3.2. The assessing officer has in this case, after going through the information in his possession and satisfying himself about the escapement of income issued notice under section 148. What makes the learned counsel think that the application of mind by the AO is absent is not understood. It merely appears to be a figment of imagination of the learned counsel.

3.3.3. The learned counsel for the appellant further argued that the reasons recorded have to be given within 30 days of filing the return. There is no statutory or mandatory requirement that the reasons recorded have to be given 30 days of filing the return. The honourable Supreme Court in the case of GKN Driveshaft has merely said that if the assessee asks for reasons recorded for reopening the assessing officer has been to give the reasons. No time limit has set by any authority. On the contrary the notice under section 148 specifically mentions that the return has to be filed within 30 days from 5 Surendrakumar H. Chaplot the receipt of notice. In the instant case, it is seen that the assessing officer had issued the notice on 7.3.2014 which was duly served on the assessee. But the assessee had responded to the notice after more than 2 months i.e. vide his letter dated 13.6.2014 filed in the AO's office on 20.6.2014 requesting the AO to treat the original return filed on 28.9.2009 as return filed in response to notice under section 148 of the Income Tax Act. The assessee has not complied with the statutory requirement of filing the return within 30 days. But he chooses to impose conditions, which are nowhere mentioned, on the assessing officer. The argument of the learned counsel is ridiculous. He does not follow the requirement of law but tries to create a law for the assessing officer. 3.3.4. In view of the discussion above, the action of the assessing officer in issuing a notice under section 148 of the Income Tax Act for reopening the assessment is held to be legal and valid.”

5. Upon careful consideration, I am of the considered opinion that there is no infirmity in the well reasoned order of learned CIT(A). I find that learned CIT(A) has rightly dismissed the assessee's objection that he has not been supplied with the reasons for reopening. The learned CIT(A) has given a finding that evidence on record duly show that the reasons for recording has been duly supplied. Thereafter assessee has participated in the proceedings and given the relevant information. The assessee's contention that he has only received the covering letter and not the actual reasons for reopening is a self- serving statement devoid of any cogency. Hence learned CIT(appeals) has rightly dismissed this issue raised by the assessee.

6 Surendrakumar H. Chaplot connection and relevant bearing on such formation of belief for issuing valid notices for re-assessment - sufficiency or correctness of material was not to be considered at this stage.

2) Sun Pharmaceuticals Industries Ltd. Vs. DCIT 353 ITR 474 (Guj.) where the Hon'ble High Court held formation by belief by AO is essentially within his subjective satisfaction - at the stage of issue of notice, only question is whether there was relevant material on which reasonable person could have formed requisite belief.

3) N.K. Industries Ltd. vs. ITO 362 ITR 542 (Guj.) where the Hon'ble HC held if a particular issue is brought to the notice of the AO by audit party and AO of his/her application of mind finds this ground as valid, reopening of assessment cannot be quashed merely because such ground was brought to the notice of AO by the audit party.

In view of the aforesaid decisions the other decisions referred by learned Counsel of the assessee do not support the assessee’s case.

7. The other aspect of challenge of reopening also been duly dealt with by the learned CIT(A). I do not find any infirmity in the same. Accordingly, I uphold the same.