BALAJI BUILLION & COMMODITIES (INDIA) PVT. LTD.,MUMBAI vs. DCIT - CC- 7(1), MUMBAI

2. Because, in any view, the reassessment proceedings u/s.147 r.w.s. in any view, the reassessment proceedings u/s.147 r.w.s. in any view, the reassessment proceedings u/s.147 r.w.s. 143(3) of the Income 143(3) of the Income-tax Act, 1961 could not be initiated merely because initiated merely because of change of opinion on the same facts and circumstances which were of change of opinion on the same facts and circumstances which were of change of opinion on the same facts and circumstances which were already in A.O's knowledge even during the original asses already in A.O's knowledge even during the original asses already in A.O's knowledge even during the original assessment proceedings.

3. Because, in any view, A.O. while making assessment u/s. 153A Because, in any view, A.O. while making assessment u/s. 153A Because, in any view, A.O. while making assessment u/s. 153A r.w.s. 143(3) having made specific enquiries with regard to M/s. Bafna r.w.s. 143(3) having made specific enquiries with regard to M/s. Bafna r.w.s. 143(3) having made specific enquiries with regard to M/s. Bafna Exim Pvt. Ltd by way of show Exim Pvt. Ltd by way of show-cause notice and in response to which, cause notice and in response to which, assessee company furnished all the assessee company furnished all the relevant documents and after relevant documents and after considering this material, A.O. having completed the assessment, it considering this material, A.O. having completed the assessment, it considering this material, A.O. having completed the assessment, it cannot be said that income has escaped assessment on account of cannot be said that income has escaped assessment on account of cannot be said that income has escaped assessment on account of failure on the part of assessee company to disclose fully and truly all failure on the part of assessee company to disclose fully and truly all failure on the part of assessee company to disclose fully and truly all the material facts nec the material facts necessary for assessment and reopening of essary for assessment and reopening of assessment after expiry of four years from the end of the relevant assessment after expiry of four years from the end of the relevant assessment after expiry of four years from the end of the relevant assessment was invalid. assessment was invalid.

4. Because, in any view, specific mention by the A.O. in the reasons Because, in any view, specific mention by the A.O. in the reasons Because, in any view, specific mention by the A.O. in the reasons recorded for reopening the completed assessment of the fa recorded for reopening the completed assessment of the fa recorded for reopening the completed assessment of the failure of the assessee to disclose fully and truly all material facts necessary for the assessee to disclose fully and truly all material facts necessary for the assessee to disclose fully and truly all material facts necessary for the assessment, is the sine qua for assuming jurisdiction u/s.147 of the Act assessment, is the sine qua for assuming jurisdiction u/s.147 of the Act assessment, is the sine qua for assuming jurisdiction u/s.147 of the Act in a case falling under the proviso thereto and in the absence thereof in a case falling under the proviso thereto and in the absence thereof in a case falling under the proviso thereto and in the absence thereof makes the action taken by makes the action taken by the A.O. wholly without jurisdiction. the A.O. wholly without jurisdiction.

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 4 M/s Balaji Bullion & ITA No. 3599/M/2018 3.1 Briefly stated facts of the case are that the assessee filed Briefly stated facts of the case are that the assessee filed Briefly stated facts of the case are that the assessee filed return of income on 21.09.2009 declaring total income at return of income on 21.09.2009 declaring total income at return of income on 21.09.2009 declaring total income at Rs.55,95,863/-. Subsequently, on account of search action carried . Subsequently, on account of search action carried . Subsequently, on account of search action carried out at the premises of Shri Manoj B. Punamiya and others by the out at the premises of Shri Manoj B. Punamiya and others by the out at the premises of Shri Manoj B. Punamiya and others by the Investigation Wing, Mumbai on 31.10.2009 assessment in the cases ation Wing, Mumbai on 31.10.2009 assessment in the cases ation Wing, Mumbai on 31.10.2009 assessment in the cases of the assessee was completed u/s 153 r.w.s. 143(3) of the Income- of the assessee was completed u/s 153 r.w.s. 143(3) of the Income of the assessee was completed u/s 153 r.w.s. 143(3) of the Income tax Act, 1961 (in short ‘the Act’) on 07.08.2012 determining total tax Act, 1961 (in short ‘the Act’) on 07.08.2012 determining total tax Act, 1961 (in short ‘the Act’) on 07.08.2012 determining total income income at at Rs.474,41,51,670/ Rs.474,41,51,670/-. . Subsequent Subsequent to to the the above above assessment, the Assessing Officer received information from the the Assessing Officer received information from the the Assessing Officer received information from the Director General of Income Director General of Income-tax (Investigation) that the assessee had tax (Investigation) that the assessee had taken accommodation entries in the garb of the bogus transactions taken accommodation entries in the garb of the bogus transactions taken accommodation entries in the garb of the bogus transactions from the parties which were operated or controlled by Shri Anil from the parties which were operated or controlled by Shri Anil from the parties which were operated or controlled by Shri Anil Kumar Jain and Shri Pravin Kumar Jain who were engaged in Jain and Shri Pravin Kumar Jain who were engaged in Jain and Shri Pravin Kumar Jain who were engaged in provided provided provided accommodation accommodation accommodation entries entries entries of of of unsecured unsecured unsecured loan loan loan share share share application money sales etc. On the basis of the information application money sales etc. On the basis of the information application money sales etc. On the basis of the information received, the Assessing Officer reopened the assessment u/s 147 of received, the Assessing Officer reopened the assessment u/s 147 of received, the Assessing Officer reopened the assessment u/s 147 of the Act after record the Act after recording reasons to believe that income escaped ing reasons to believe that income escaped assessment and accordingly issued notice u/s 148 of the Act on assessment and accordingly issued notice u/s 148 of the Act on assessment and accordingly issued notice u/s 148 of the Act on 30.03.2016. In response the assessee filed a letter to treat the 30.03.2016. In response the assessee filed a letter to treat the 30.03.2016. In response the assessee filed a letter to treat the original return of income filed on 21.09.2009 as return filed. In original return of income filed on 21.09.2009 as return filed. In original return of income filed on 21.09.2009 as return filed. In response to the not response to the notice u/s 148 of the Act thereafter statutory ice u/s 148 of the Act thereafter statutory notices were issued by the Assessing Officer and assessment was notices were issued by the Assessing Officer and assessment was notices were issued by the Assessing Officer and assessment was completed wherein the Assessing Officer made addition for amount completed wherein the Assessing Officer made addition for amount completed wherein the Assessing Officer made addition for amount of Rs.17,40,00,147/ of Rs.17,40,00,147/- from M/s Bafna Exim Pvt. Ltd. as from M/s Bafna Exim Pvt. Ltd. as unexplained cash credit u/s 6 unexplained cash credit u/s 68 of the Act. The Assessing Officer 8 of the Act. The Assessing Officer

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 5 M/s Balaji Bullion & ITA No. 3599/M/2018 also treated the amount of Rs.4,02,39,597/ also treated the amount of Rs.4,02,39,597/- as returned back of as returned back of advance from M/s Bafna Exim Pvt. Ltd. invoking section 68 of the advance from M/s Bafna Exim Pvt. Ltd. invoking section 68 of the advance from M/s Bafna Exim Pvt. Ltd. invoking section 68 of the Act.

3.2 On further appeal, the Ld. CIT(A) after considering the On further appeal, the Ld. CIT(A) after considering the On further appeal, the Ld. CIT(A) after considering the additional evidence filed additional evidence filed by the assessee upheld the addition made by the assessee upheld the addition made by the AO for the reason that assessee failed to establish identity by the AO for the reason that assessee failed to establish identity by the AO for the reason that assessee failed to establish identity and creditworthiness of M/s Bafna Exim Pvt. Ltd. The Ld. CIT(A) and creditworthiness of M/s Bafna Exim Pvt. Ltd. The Ld. CIT(A) and creditworthiness of M/s Bafna Exim Pvt. Ltd. The Ld. CIT(A) observed that the party M/s Bafna Exim Pvt. Ltd. was not available observed that the party M/s Bafna Exim Pvt. Ltd. was not available observed that the party M/s Bafna Exim Pvt. Ltd. was not available at the address provided and despite given ample opportunity and provided and despite given ample opportunity and provided and despite given ample opportunity and time the assessee could not produce any director from the said time the assessee could not produce any director from the said time the assessee could not produce any director from the said company either during the remand proceedings. The Ld. CIT(A) has company either during the remand proceedings. The Ld. CIT(A) has company either during the remand proceedings. The Ld. CIT(A) has further observed that share capital and reserve and surplus of the further observed that share capital and reserve and surplus of the further observed that share capital and reserve and surplus of the said company were not sufficient to unsecured loan to the assessee. were not sufficient to unsecured loan to the assessee. were not sufficient to unsecured loan to the assessee. The Ld. CIT(A) further observed that there were no fixed asset to the The Ld. CIT(A) further observed that there were no fixed asset to the The Ld. CIT(A) further observed that there were no fixed asset to the company. The Ld. CIT(A) referred to the decision of the Hon’ble company. The Ld. CIT(A) referred to the decision of the Hon’ble company. The Ld. CIT(A) referred to the decision of the Hon’ble Supreme Court in the case of Sumati Dayal v. CIT (1995) 214 ITR Supreme Court in the case of Sumati Dayal v. CIT (1995) 214 ITR Supreme Court in the case of Sumati Dayal v. CIT (1995) 214 ITR 801 and held that applying the test of human probabilities the 1 and held that applying the test of human probabilities the 1 and held that applying the test of human probabilities the documentary filed by the assessee cannot be accepted. The Ld. documentary filed by the assessee cannot be accepted. The Ld. documentary filed by the assessee cannot be accepted. The Ld. CIT(A) has also sustained the addition of Rs.4,02,39,597/-. The Ld. CIT(A) has also sustained the addition of Rs.4,02,39,597/ CIT(A) has also sustained the addition of Rs.4,02,39,597/ CIT(A) held the addition observing as under: CIT(A) held the addition observing as under:

“8.2 The submissions 8.2 The submissions of the Learned Counsel have been carefully of the Learned Counsel have been carefully considered. The Learned Counsel contended that the AO has wrongly considered. The Learned Counsel contended that the AO has wrongly considered. The Learned Counsel contended that the AO has wrongly added an amount of Rs.4,98,01,152/ added an amount of Rs.4,98,01,152/- and the onus is on the AO to and the onus is on the AO to prove the genuineness of the addition. Firstly, the AO has not added prove the genuineness of the addition. Firstly, the AO has not added prove the genuineness of the addition. Firstly, the AO has not added an amount of an amount of Rs.4,98,01,152/-. AO's information was that the . AO's information was that the assessee has paid an amount of Rs. 2,42,80,817/ assessee has paid an amount of Rs. 2,42,80,817/- whereas it is the whereas it is the assessee himself who had submitted to the AO that the amount paid assessee himself who had submitted to the AO that the amount paid assessee himself who had submitted to the AO that the amount paid back was Rs.4,02,39,597/ back was Rs.4,02,39,597/-. Не had enclosed ledger copy and bank . Не had enclosed ledger copy and bank

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 6 M/s Balaji Bullion & ITA No. 3599/M/2018 statement of the same. On the bais of this the AO had made addition of the same. On the bais of this the AO had made addition of the same. On the bais of this the AO had made addition of Rs.4,02,39,597/ of Rs.4,02,39,597/-. Therefore, it is not correct on the part of the . Therefore, it is not correct on the part of the assessee to now say that addition of Rs. 4,98,01,152/ assessee to now say that addition of Rs. 4,98,01,152/- - has been made and that the onus is on the AO to prove the genuineness of t made and that the onus is on the AO to prove the genuineness of t made and that the onus is on the AO to prove the genuineness of the addition. The ledger copy submitted now shows an amount of addition. The ledger copy submitted now shows an amount of addition. The ledger copy submitted now shows an amount of Rs.2,25,80,816/ Rs.2,25,80,816/- which has been repaid. Irrespective of the amount, which has been repaid. Irrespective of the amount, the assessee was asked as to what is the transaction which took the assessee was asked as to what is the transaction which took the assessee was asked as to what is the transaction which took place for which the amount has been repaid. It was submitted t place for which the amount has been repaid. It was submitted t place for which the amount has been repaid. It was submitted that these are advances for sales which have been received but these are advances for sales which have been received but these are advances for sales which have been received but subsequently repaid, as the subsequently repaid, as the assessee could not procure the specified assessee could not procure the specified diamonds requisitioned by M/s diamonds requisitioned by M/s Bafna Exim Pvt. Ltd. If these are Bafna Exim Pvt. Ltd. If these are advances for sales, this amount would have found place in the advances for sales, this amount would have found place in the advances for sales, this amount would have found place in the ledger of the sales account which reflected the figure of Rs.17,40,00,147/ of the sales account which reflected the figure of Rs.17,40,00,147/ of the sales account which reflected the figure of Rs.17,40,00,147/-. Therefore, it is clear that it is not sale transaction. Therefore, it is clear that it is not sale transaction. Further the Learned Further the Learned Counsel has been asked to provide copies of the purchase orders, Counsel has been asked to provide copies of the purchase orders, Counsel has been asked to provide copies of the purchase orders, wherein the orders were placed by M/s wherein the orders were placed by M/s Bafna Exim Pvt. Bafna Exim Pvt. Ltd. and which could not be procured by the assessee and subsequently which could not be procured by the assessee and subsequently which could not be procured by the assessee and subsequently returned. The Learned Counsel produced copies of some purchase returned. The Learned Counsel produced copies of some purchase returned. The Learned Counsel produced copies of some purchase orders. There is not a single purchase order where there is an advance There is not a single purchase order where there is an advance There is not a single purchase order where there is an advance received from M/s Bafna Exim Pvt. L received from M/s Bafna Exim Pvt. Ltd. All the purchase orders have a td. All the purchase orders have a figure of sub-total, invoice total, amount paid in advance and balance total, invoice total, amount paid in advance and balance total, invoice total, amount paid in advance and balance due. In all the orders the amount paid in advance is zero. The balance due. In all the orders the amount paid in advance is zero. The balance due. In all the orders the amount paid in advance is zero. The balance due is the invoice total. There is not an iota of doubt that the assessee due is the invoice total. There is not an iota of doubt that the assessee due is the invoice total. There is not an iota of doubt that the assessee has not received any advance towards sale from M/s Bafna Exim Pvt. ot received any advance towards sale from M/s Bafna Exim Pvt. ot received any advance towards sale from M/s Bafna Exim Pvt. Ltd. The ledger account for sale also clearly shows that the assessee Ltd. The ledger account for sale also clearly shows that the assessee Ltd. The ledger account for sale also clearly shows that the assessee has supplied the goods first and received the payment later. This is has supplied the goods first and received the payment later. This is has supplied the goods first and received the payment later. This is the practice followed by the assessee or any other pers the practice followed by the assessee or any other person in business. on in business. The argument of the Learned Counsel that these are the advance The argument of the Learned Counsel that these are the advance The argument of the Learned Counsel that these are the advance given for sale which have been subsequently returned back has no given for sale which have been subsequently returned back has no given for sale which have been subsequently returned back has no substance and is a figment of imagination of the Learned Counsel. As substance and is a figment of imagination of the Learned Counsel. As substance and is a figment of imagination of the Learned Counsel. As already discussed, the whereabouts of M/s B already discussed, the whereabouts of M/s Bafna Exim Pvt. Ltd. are afna Exim Pvt. Ltd. are not known and it had already been heid that it is merely a paper not known and it had already been heid that it is merely a paper not known and it had already been heid that it is merely a paper entity providing accommodation entries. As the amount of Rs. entity providing accommodation entries. As the amount of Rs. entity providing accommodation entries. As the amount of Rs. 4,02,39,597/- is found credited in the books of the assessee and the is found credited in the books of the assessee and the assessee could not offer assessee could not offer a satisfactory explanation for the same. The ry explanation for the same. The AO has rightly added this amount u/s 68 of the IT Act. The same is AO has rightly added this amount u/s 68 of the IT Act. The same is AO has rightly added this amount u/s 68 of the IT Act. The same is confirmed. This ground of appeal is confirmed. This ground of appeal is DISMISSED.” 3.3 Aggrieved with the order of the Ld. CIT(A), the assessee is in Aggrieved with the order of the Ld. CIT(A), the assessee is in Aggrieved with the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by way of rais appeal before the Tribunal by way of raising grounds and additional ing grounds and additional ground as reproduced above. ground as reproduced above.

3.4 Before us, the assessee has filed a Paper book containing Before us, the assessee has filed a Paper book containing Before us, the assessee has filed a Paper book containing pages 1 to 486.

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 7 M/s Balaji Bullion & ITA No. 3599/M/2018 3.5 Regarding the additional ground No.1 the Ld. counsel for the Regarding the additional ground No.1 the Ld. counsel for the Regarding the additional ground No.1 the Ld. counsel for the assessee submitted that the Assessing Officer had already passed assessee submitted that the Assessing Officer had already assessee submitted that the Assessing Officer had already assessment assessment assessment order order order u/s u/s u/s 153A 153A 153A r.w.s. r.w.s. r.w.s. 143(3) 143(3) 143(3) on on on 07.08.2012 07.08.2012 07.08.2012 determining total income at Rs.4,74,41,51,670/ determining total income at Rs.4,74,41,51,670/- which has been which has been quashed by the Tribunal vide order dated 29.04.2022 in by the Tribunal vide order dated 29.04.2022 in ITA No. quashed by the Tribunal vide order dated 29.04.2022 in ITA No. 1291/M/2018. The Ld. counsel submitted that the Assessing 1291/M/2018. The Ld. counsel submitted that the Assessing 1291/M/2018. The Ld. counsel submitted that the Assessing Officer is not justified in passing the subsequent assessment order not justified in passing the subsequent assessment order not justified in passing the subsequent assessment order u/s 147 of the Act. Before us, the Ld. counsel for the assessee u/s 147 of the Act. Before us, the Ld. counsel for the assessee u/s 147 of the Act. Before us, the Ld. counsel for the assessee relied on the decision of the Co relied on the decision of the Co-ordinate Bench of the Tribunal in ordinate Bench of the Tribunal in the case of State Bank of India v. DCIT in ITA No. 7039/M/2011 for the case of State Bank of India v. DCIT in ITA No. 7039/M/2011 for the case of State Bank of India v. DCIT in ITA No. 7039/M/2011 for assessment year 2003 assessment year 2003-04. The relevant part of the said decision is 04. The relevant part of the said decision is reproduced as under: reproduced as under:

“3. At the outset, it has been pointed out that ITAT in the assessee own 3. At the outset, it has been pointed out that ITAT in the assessee own 3. At the outset, it has been pointed out that ITAT in the assessee own case in & 5421/Mum/2011 for the Assessment Years case in ITA Nos. 5420 & 5421/Mum/2011 for the Assessment Years case in ITA Nos. 5420 & 5421/Mum/2011 for the Assessment Years 2001-02 & 2002 02 & 2002-03 has quashed the assessment order passed u/s e assessment order passed u/s 143 r.w.s. 147 of the Act as illegal, arbitrary & wholly without 143 r.w.s. 147 of the Act as illegal, arbitrary & wholly without 143 r.w.s. 147 of the Act as illegal, arbitrary & wholly without jurisdiction. The relevant findings of the Tribunal are extracted jurisdiction. The relevant findings of the Tribunal are extracted jurisdiction. The relevant findings of the Tribunal are extracted hereunder: "20. Applying the ratio of the above decisions to the facts of the "20. Applying the ratio of the above decisions to the facts of the "20. Applying the ratio of the above decisions to the facts of the present case, we present case, we find that there is no dispute that the original find that there is no dispute that the original assessment for the A. Y. 2001 assessment for the A. Y. 2001-02 was completed u/s 143(3) on 02 was completed u/s 143(3) on 13.02.2004 determining the total income at Rs.26,35, 49, 13.02.2004 determining the total income at Rs.26,35, 49, 13.02.2004 determining the total income at Rs.26,35, 49, 42,360/ 42,360/- Thereafter, a search and seizure action was initiated Thereafter, a search and seizure action was initiated in assessee's case by the D in assessee's case by the Department on 02.07.2005 on which epartment on 02.07.2005 on which date the assessment for the A.Y. 2001 date the assessment for the A.Y. 2001-02 was not pending. 02 was not pending. Therefore, in Therefore, in view of the non-obstinate clause with which sub obstinate clause with which sub section (1) of section 153A section (1) of section 153A opens, the AO has no jurisdiction to opens, the AO has no jurisdiction to issue notice u/s 148 of the Act in res issue notice u/s 148 of the Act in respect of those six pect of those six assessment years which falls within the exclusive jurisdiction of assessment years which falls within the exclusive jurisdiction of assessment years which falls within the exclusive jurisdiction of section 153A of the Act and accordingly the AO was not justified section 153A of the Act and accordingly the AO was not justified section 153A of the Act and accordingly the AO was not justified in issuing notice u/s 148 on 28.08.2006 and in completing the in issuing notice u/s 148 on 28.08.2006 and in completing the in issuing notice u/s 148 on 28.08.2006 and in completing the impugned assessment u/s 143(3) r.w.s. 147 of impugned assessment u/s 143(3) r.w.s. 147 of impugned assessment u/s 143(3) r.w.s. 147 of the Act on 31.10.2006. The AO instead of complying with the requirement 31.10.2006. The AO instead of complying with the requirement 31.10.2006. The AO instead of complying with the requirement of section 153A proceeded with the provisions of section of section 153A proceeded with the provisions of section of section 153A proceeded with the provisions of section 147/148 which are not applicable in the assessment u/s 153A 147/148 which are not applicable in the assessment u/s 153A 147/148 which are not applicable in the assessment u/s 153A of the Act, therefore, the impugned assessment completed u/s of the Act, therefore, the impugned assessment completed u/s of the Act, therefore, the impugned assessment completed u/s 143(3) r.w.s. 147 of the Act is a nullity and as such the r.w.s. 147 of the Act is a nullity and as such the M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 8 M/s Balaji Bullion & ITA No. 3599/M/2018 assessment order dated 31.10.2006 passed u/s 143(3) r.w.s. assessment order dated 31.10.2006 passed u/s 143(3) r.w.s. assessment order dated 31.10.2006 passed u/s 143(3) r.w.s. 147 of the Act is illegal, arbitrary, wholly without jurisdiction 147 of the Act is illegal, arbitrary, wholly without jurisdiction 147 of the Act is illegal, arbitrary, wholly without jurisdiction and, hence, the same is quashed." and, hence, the same is quashed." It is observed that in the instant case also, It is observed that in the instant case also, the assessment order has the assessment order has been passed in the light of the identical facts on the basis of the same been passed in the light of the identical facts on the basis of the same been passed in the light of the identical facts on the basis of the same reopening made u/s 147 of the Act. When the facts are being so, we are reopening made u/s 147 of the Act. When the facts are being so, we are reopening made u/s 147 of the Act. When the facts are being so, we are of the considered opinion that the the additional grounds raised by the of the considered opinion that the the additional grounds raised by the of the considered opinion that the the additional grounds raised by the assessee in th assessee in the present case are squarely covered in favour of the e present case are squarely covered in favour of the assessee by the aforementioned decision of the ITAT. Therefore we, by assessee by the aforementioned decision of the ITAT. Therefore we, by assessee by the aforementioned decision of the ITAT. Therefore we, by following the said decision of the ITAT quash the assessment order following the said decision of the ITAT quash the assessment order following the said decision of the ITAT quash the assessment order passed u/s 143(3) r.w.s. 147 in this case also in the same line passed u/s 143(3) r.w.s. 147 in this case also in the same line passed u/s 143(3) r.w.s. 147 in this case also in the same line accordingly.” 3.6 On perusal of the above decision, we find that in said case On perusal of the above decision, we find that in said case On perusal of the above decision, we find that in said case issue was whether the six years which were covered in search issue was whether the six years which were covered in search issue was whether the six years which were covered in search period for invoking proceedings u/s 153A of the Act and Assessing period for invoking proceedings u/s 153A of the Act and Assessing period for invoking proceedings u/s 153A of the Act and Assessing Officer reopen the assessment invoking section 147 of the Act Officer reopen the assessment invoking section 147 of Officer reopen the assessment invoking section 147 of rather than initiating proceedings u/s 153A of the Act. The facts of rather than initiating proceedings u/s 153A of the Act. The facts of rather than initiating proceedings u/s 153A of the Act. The facts of the present case are totally different in the instant case. The the present case are totally different in the instant case. The the present case are totally different in the instant case. The Assessing Officer has issued reassessment proceedings after four Assessing Officer has issued reassessment proceedings after four Assessing Officer has issued reassessment proceedings after four years from the completion of the assessment proce years from the completion of the assessment proceedings u/s 153A edings u/s 153A of the Act therefore, the grounds raised by the assessee are of the Act therefore, the grounds raised by the assessee are of the Act therefore, the grounds raised by the assessee are dismissed.

4. The additional ground No. 2 and 3 of the appeal of the The additional ground No. 2 and 3 of the appeal of the The additional ground No. 2 and 3 of the appeal of the assessee relates to challenge of reassessment proceedings on the assessee relates to challenge of reassessment proceedings on the assessee relates to challenge of reassessment proceedings on the basis of the change of opinion. basis of the change of opinion.

4.1 We have heard rival submission of the parties on the issue in ve heard rival submission of the parties on the issue in ve heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us, the dispute and perused the relevant material on record. Before us, the dispute and perused the relevant material on record. Before us, the Ld. counsel for the assessee referred to the Paper Book page 241 to Ld. counsel for the assessee referred to the Paper Book page 241 to Ld. counsel for the assessee referred to the Paper Book page 241 to 306 which is copy of the order of the Co 306 which is copy of the order of the Co-ordinate Bench of the ordinate Bench of the M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 9 M/s Balaji Bullion & ITA No. 3599/M/2018 Tribunal quashing the proceedings u/s 153A of the Act. The Ld. Tribunal quashing the proceedings u/s 153A of the Act. The Ld. Tribunal quashing the proceedings u/s 153A of the Act. The Ld. counsel further referred to Paper Book page 73 to 82 and submitted counsel further referred to Paper Book page 73 to 82 and submitted counsel further referred to Paper Book page 73 to 82 and submitted that during proceedings u/s 153A, the Assessing Officer duly that during proceedings u/s 153A, the Assessing Officer duly that during proceedings u/s 153A, the Assessing Officer duly inquired about the credit from M/s Bafna Exim Pvt. Ltd. and the inquired about the credit from M/s Bafna Exim Pvt. Ltd. and the inquired about the credit from M/s Bafna Exim Pvt. Ltd. and the assessee duly responded and file all the evidence in support of ssessee duly responded and file all the evidence in support of ssessee duly responded and file all the evidence in support of discharging onus u/s 68 of the Act and therefore, now the u/s 68 of the Act and therefore, now the u/s 68 of the Act and therefore, now the reopening of the assessment for enquiring the very same credit from reopening of the assessment for enquiring the very same credit from reopening of the assessment for enquiring the very same credit from M/s Bafna Exim Pvt. Ltd. amounts to change of opinion, the Ld. M/s Bafna Exim Pvt. Ltd. amounts to change of opinion, the Ld. M/s Bafna Exim Pvt. Ltd. amounts to change of opinion, the Ld. counsel relied on the decision of the Hon’ble Supreme Court in the sel relied on the decision of the Hon’ble Supreme Court in the sel relied on the decision of the Hon’ble Supreme Court in the case of Asian Paints Ltd. and Parle Products (P.) Ltd. case of Asian Paints Ltd. and Parle Products (P.) Ltd. case of Asian Paints Ltd. and Parle Products (P.) Ltd.

4.2 On the contrary, the Ld. Departmental Representative (DR) On the contrary, the Ld. Departmental Representative (DR) On the contrary, the Ld. Departmental Representative (DR) submitted that assessment has been reopened on the basis of the submitted that assessment has been reopened on the basis of the submitted that assessment has been reopened on the basis of the subsequent information which is a tangible material and therefore, nformation which is a tangible material and therefore, nformation which is a tangible material and therefore, this is not the case of change of opinion same material available this is not the case of change of opinion same material available this is not the case of change of opinion same material available before the Assessing Officer. The Ld. DR relied on the decision of before the Assessing Officer. The Ld. DR relied on the decision of before the Assessing Officer. The Ld. DR relied on the decision of the Hon’ble High Court of Bombay in the case of Bright Star Syntex the Hon’ble High Court of Bombay in the case of Bright Star Syntex the Hon’ble High Court of Bombay in the case of Bright Star Syntex (P.) Ltd. v. ITO [2016] 71 taxmann.com 64 (Bombay), Nickunaj P.) Ltd. v. ITO [2016] 71 taxmann.com 64 (Bombay), Nickunaj P.) Ltd. v. ITO [2016] 71 taxmann.com 64 (Bombay), Nickunaj Eximp Enterprises (P.) Ltd. v. Asstt. CIT [2014] 48 taxmann.com 20 Eximp Enterprises (P.) Ltd. v. Asstt. CIT [2014] 48 taxmann.com 20 Eximp Enterprises (P.) Ltd. v. Asstt. CIT [2014] 48 taxmann.com 20 (Bombay), CIT v. India Terminal Connectors Systems Ltd. [2012] 21 (Bombay), CIT v. India Terminal Connectors Systems Ltd. [2012] 21 (Bombay), CIT v. India Terminal Connectors Systems Ltd. [2012] 21 taxmann.com 69 (Delhi) and Ambuj Foods (P.) Ltd. v. PCIT [2022] taxmann.com 69 (Delhi) and Ambuj Foods (P.) Ltd. v. PCIT [2022] taxmann.com 69 (Delhi) and Ambuj Foods (P.) Ltd. v. PCIT [2022] 139 taxmann.com 404 (Allahabad). 139 taxmann.com 404 (Allahabad).

4.3 We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In the case dispute and perused the relevant material on record. In the case dispute and perused the relevant material on record. In the case evidently, the reassessment has been reopened on the basis of the evidently, the reassessment has been reopened on the basis of the evidently, the reassessment has been reopened on the basis of the M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 10 M/s Balaji Bullion & ITA No. 3599/M/2018 information received that information received that assessee obtain accommodation entry assessee obtain accommodation entry from Mr. Pravin Kumar Jain and Mr. Anil Kumar Jain in as this from Mr. Pravin Kumar Jain and Mr. Anil Kumar Jain in from Mr. Pravin Kumar Jain and Mr. Anil Kumar Jain in information was received was search of their premises by the information was received was search of their premises by the information was received was search of their premises by the Investigation Wing of the Income Investigation Wing of the Income-tax Department which being a tax Department which being a credible and reliable source of in credible and reliable source of information. The Assessing Officer formation. The Assessing Officer has reopened the assessment and which cannot be termed mere has reopened the assessment and which cannot be termed mere has reopened the assessment and which cannot be termed mere change of opinion by the Assessing Officer on the same set of facts change of opinion by the Assessing Officer on the same set of facts change of opinion by the Assessing Officer on the same set of facts available before him and therefore, the decisions relied upon by the available before him and therefore, the decisions relied upon by the available before him and therefore, the decisions relied upon by the DR in the case of Asian Pa DR in the case of Asian Paints Ltd. (supra). The assessment was ints Ltd. (supra). The assessment was reopened on the same set of information which are available during reopened on the same set of information which are available during reopened on the same set of information which are available during the course of regular assessment proceedings and therefore, the the course of regular assessment proceedings and therefore, the the course of regular assessment proceedings and therefore, the Hon’ble Supreme Court quashed the reassessment proceedings on Hon’ble Supreme Court quashed the reassessment proceedings on Hon’ble Supreme Court quashed the reassessment proceedings on the ground of change of o the ground of change of opinion. Similarly, in the case of Parle pinion. Similarly, in the case of Parle Products (P.) Ltd. (supra) also there was no additional or new Products (P.) Ltd. (supra) also there was no additional or new Products (P.) Ltd. (supra) also there was no additional or new information with the Assessing Officer and it was a fresh information with the Assessing Officer and it was a fresh information with the Assessing Officer and it was a fresh application of mind by the different Assessing Officer on the same application of mind by the different Assessing Officer on the same application of mind by the different Assessing Officer on the same set of facts and therefore, set of facts and therefore, the reassessment proceedings were the reassessment proceedings were quashed. Whereas in the instant case before us, there is an quashed. Whereas in the instant case before us, there is an quashed. Whereas in the instant case before us, there is an additional tangible information in the form of finding of the additional tangible information in the form of finding of the additional tangible information in the form of finding of the Investigation Wing during the course of search carried out of the Investigation Wing during the course of search carried out of the Investigation Wing during the course of search carried out of the premises of Mr. Anil Kumar Jain an premises of Mr. Anil Kumar Jain and Mr. Pravin Kumar Jain d Mr. Pravin Kumar Jain. In the case of Bright Star Syntex (P.) Ltd. (supra) the Hon’ble Bombay High case of Bright Star Syntex (P.) Ltd. (supra) the Hon’ble Bombay High case of Bright Star Syntex (P.) Ltd. (supra) the Hon’ble Bombay High Court information received in the case of search on Mr. Pravin Court information received in the case of search on Mr. Pravin Court information received in the case of search on Mr. Pravin Kumar Jain upheld the reassessment proceedings observing as Kumar Jain upheld the reassessment proceedings observing as Kumar Jain upheld the reassessment proceedings observing as under:

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 11 M/s Balaji Bullion & ITA No. 3599/M/2018

“7. We find that the 7. We find that the reasons in support of the impugned notice indicates reasons in support of the impugned notice indicates that the Assessing Officer has received definite information that one Mr. that the Assessing Officer has received definite information that one Mr. that the Assessing Officer has received definite information that one Mr. Praveen Kumar Jain and the companies controlled by him was the Praveen Kumar Jain and the companies controlled by him was the Praveen Kumar Jain and the companies controlled by him was the business of providing accommodation entries. On receipt of the afor business of providing accommodation entries. On receipt of the afor business of providing accommodation entries. On receipt of the aforesaid information; the Assessing Officer called for the necessary information in information; the Assessing Officer called for the necessary information in information; the Assessing Officer called for the necessary information in regard to the accommodation entries made in respect of the assessees in regard to the accommodation entries made in respect of the assessees in regard to the accommodation entries made in respect of the assessees in his jurisdiction. Consequent thereto, the Assessing Officer found that the his jurisdiction. Consequent thereto, the Assessing Officer found that the his jurisdiction. Consequent thereto, the Assessing Officer found that the information received indicat information received indicated that the eight companies mentioned in the ed that the eight companies mentioned in the reasons belonged to Mr. reasons belonged to Mr. Praveen Kumar Jain group and formed the basis Praveen Kumar Jain group and formed the basis of his reasonable belief. At this stage the Assessing Officer has merely to of his reasonable belief. At this stage the Assessing Officer has merely to of his reasonable belief. At this stage the Assessing Officer has merely to establish that there is justification for him to form a reasonabl establish that there is justification for him to form a reasonabl establish that there is justification for him to form a reasonable belief that income chargeable to tax had escaped assessment and not conclusively income chargeable to tax had escaped assessment and not conclusively income chargeable to tax had escaped assessment and not conclusively prove the same. The reliance by the petitioner on the decision of the Apex prove the same. The reliance by the petitioner on the decision of the Apex prove the same. The reliance by the petitioner on the decision of the Apex Court in S.P. Chaliha case (supra) rendered in a completely different fact Court in S.P. Chaliha case (supra) rendered in a completely different fact Court in S.P. Chaliha case (supra) rendered in a completely different fact situation can have no a situation can have no application. In that case the reasons recorded pplication. In that case the reasons recorded clearly reveal that investigation into allegation is to be done where clearly reveal that investigation into allegation is to be done where clearly reveal that investigation into allegation is to be done where certain persons appear to be name certain persons appear to be name-lenders and the reasons in support of lenders and the reasons in support of the impugned notice clearly states that investigation with regard to the impugned notice clearly states that investigation with regard to the impugned notice clearly states that investigation with regard to the loans is necessary. Thus, the Court held that there was no prima facie loans is necessary. Thus, the Court held that there was no prima facie loans is necessary. Thus, the Court held that there was no prima facie View reflected in the reasons as the same was subject to investigation of reflected in the reasons as the same was subject to investigation of reflected in the reasons as the same was subject to investigation of the transaction to find its genuineness. Similarly the decision in the transaction to find its genuineness. Similarly the decision in the transaction to find its genuineness. Similarly the decision in Lakhmani Mewal Das (supra) was a case o Lakhmani Mewal Das (supra) was a case of a notice beyond four years f a notice beyond four years from the end of the relevant assessment year. In that case one of the from the end of the relevant assessment year. In that case one of the from the end of the relevant assessment year. In that case one of the persons had confessed to the Revenue that he was dealing in providing persons had confessed to the Revenue that he was dealing in providing persons had confessed to the Revenue that he was dealing in providing accommodation entries i.e. name accommodation entries i.e. name-lending. Amongst the various reasons lending. Amongst the various reasons the Supreme Court the Supreme Court pointed out that there was no indication in the pointed out that there was no indication in the reasons as to when the confession was made by the name reasons as to when the confession was made by the name reasons as to when the confession was made by the name-lender and also to which assessment year the confession relates. Therefore, the also to which assessment year the confession relates. Therefore, the also to which assessment year the confession relates. Therefore, the material before the Assessing Officer was vague or indefinite and it coul material before the Assessing Officer was vague or indefinite and it coul material before the Assessing Officer was vague or indefinite and it could not be the basis for having the reason to believe that income chargeable not be the basis for having the reason to believe that income chargeable not be the basis for having the reason to believe that income chargeable to tax had escaped assessment for that year. to tax had escaped assessment for that year. Reliance was also placed Reliance was also placed upon the decision of this Court in Rushab Enterprises (supra). We find the upon the decision of this Court in Rushab Enterprises (supra). We find the upon the decision of this Court in Rushab Enterprises (supra). We find the decision of this Court was rendered decision of this Court was rendered in the context of the assessment in the context of the assessment being reopened beyond a period of 4 years from the end of the relevant being reopened beyond a period of 4 years from the end of the relevant being reopened beyond a period of 4 years from the end of the relevant assessment year. In the facts of that case and on the basis of reasons assessment year. In the facts of that case and on the basis of reasons assessment year. In the facts of that case and on the basis of reasons recorded therein, the Court held that there was no basis for having recorded therein, the Court held that there was no basis for having recorded therein, the Court held that there was no basis for having reasonable belief that income chargeable to tax has escaped assessment. lief that income chargeable to tax has escaped assessment. lief that income chargeable to tax has escaped assessment. Albeit, the Court does record that an Assessing Officer does have power Albeit, the Court does record that an Assessing Officer does have power Albeit, the Court does record that an Assessing Officer does have power to reopen an assessment, provided there was tangible material to form a to reopen an assessment, provided there was tangible material to form a to reopen an assessment, provided there was tangible material to form a reasonable belief that income chargeable to tax has e reasonable belief that income chargeable to tax has escaped assessment. scaped assessment. In the present case we are of the view that the statement of Mr. Praveen In the present case we are of the view that the statement of Mr. Praveen In the present case we are of the view that the statement of Mr. Praveen Kumar Jain is relevant tangible material with the Assessing Officer to Kumar Jain is relevant tangible material with the Assessing Officer to Kumar Jain is relevant tangible material with the Assessing Officer to form a reasonable belief that income chargeable to tax has escaped form a reasonable belief that income chargeable to tax has escaped form a reasonable belief that income chargeable to tax has escaped assessment.” 4.4 Similarly, Hon’ble Allahabad High Court in the case of Ambuj , Hon’ble Allahabad High Court in the case of Ambuj , Hon’ble Allahabad High Court in the case of Ambuj Foods Pvt. Ltd. (supra) rejected the contention of the assessee of Foods Pvt. Ltd. (supra) rejected the contention of the assessee of Foods Pvt. Ltd. (supra) rejected the contention of the assessee of M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 12 M/s Balaji Bullion & ITA No. 3599/M/2018 change of opinion. The relevant finding of the Hon’ble Allahabad change of opinion. The relevant finding of the Hon’ble Allahabad change of opinion. The relevant finding of the Hon’ble Allahabad High Court is reproduced as under: High Court is reproduced as under:

“24. Now we consider the next submiss 24. Now we consider the next submission made on behalf of the ion made on behalf of the petitioner, that the initiation of the proceedings under Sections 147/148 of petitioner, that the initiation of the proceedings under Sections 147/148 of petitioner, that the initiation of the proceedings under Sections 147/148 of the Act is based on a review of the existing material, which is not the Act is based on a review of the existing material, which is not the Act is based on a review of the existing material, which is not permissible in law. From the discussion made above, it is clear that the permissible in law. From the discussion made above, it is clear that the permissible in law. From the discussion made above, it is clear that the fact that the petitioner had routed its undisclosed funds amounting to Rs. e petitioner had routed its undisclosed funds amounting to Rs. e petitioner had routed its undisclosed funds amounting to Rs. 95,00,000/- through entry providers and absorbed it in its books of through entry providers and absorbed it in its books of through entry providers and absorbed it in its books of accounts by way of accommodation entries of prearranged share accounts by way of accommodation entries of prearranged share accounts by way of accommodation entries of prearranged share application money and share premium with the help of a syndicat application money and share premium with the help of a syndicat application money and share premium with the help of a syndicate of operators and thus an unaccounted money of the petitioner amounting to operators and thus an unaccounted money of the petitioner amounting to operators and thus an unaccounted money of the petitioner amounting to Rs. 95,00,000/ Rs. 95,00,000/- was routed to its books of accounts, had not been was routed to its books of accounts, had not been examined by the AO during the original assessment for want of a full and examined by the AO during the original assessment for want of a full and examined by the AO during the original assessment for want of a full and true disclosure of facts by the petitione true disclosure of facts by the petitioner. Therefore, the A.O. did not r. Therefore, the A.O. did not examine the aforesaid issues and he did not form an opinion regarding the examine the aforesaid issues and he did not form an opinion regarding the examine the aforesaid issues and he did not form an opinion regarding the same during the original assessment. same during the original assessment. 25.

25. The mearing of the expression "change of opinion" has been 25.

25. The mearing of the expression "change of opinion" has been 25.

6. We must also keep in mind the conceptual difference between 6. We must also keep in mind the conceptual difference between 6. We must also keep in mind the conceptual difference between power to review and power to reassess. The assessing officer has power to review and power to reassess. The assessing officer has power to review and power to reassess. The assessing officer has no power to review; he has the power to reassess. But no power to review; he has the power to reassess. But no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain precondition reassessment has to be based on fulfilment of certain precondition reassessment has to be based on fulfilment of certain precondition and if the concept of "change of opinion". is removed, as contended the concept of "change of opinion". is removed, as contended the concept of "change of opinion". is removed, as contended

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 13 M/s Balaji Bullion & ITA No. 3599/M/2018 on hehalf of the Department, then, in the garb of reopening the on hehalf of the Department, then, in the garb of reopening the on hehalf of the Department, then, in the garb of reopening the assessment, review would take place. assessment, review would take place.

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 14 M/s Balaji Bullion & ITA No. 3599/M/2018 4.5 In the case of India Terminal Connector System Ltd. (supra) In the case of India Terminal Connector System Ltd. (supra) In the case of India Terminal Connector System Ltd. (supra) Hon’ble Delhi High Court distinguished the decision in the case of Hon’ble Delhi High Court distinguished the decision in the case of Hon’ble Delhi High Court distinguished the decision in the case of Signature Hotels (P) Ltd. v. ITO [2011] 338 ITR 51 (Delhi) and re Hotels (P) Ltd. v. ITO [2011] 338 ITR 51 (Delhi) and re Hotels (P) Ltd. v. ITO [2011] 338 ITR 51 (Delhi) and rejected the contention of the change of opinion observing as under: rejected the contention of the change of opinion observing as under: rejected the contention of the change of opinion observing as under:

“9. We may note here that the information provided by the Directorate of 9. We may note here that the information provided by the Directorate of 9. We may note here that the information provided by the Directorate of Income Tax Investigation was not available with the Assess Income Tax Investigation was not available with the Assess Income Tax Investigation was not available with the Assessing Officer during the course of the first/original proceedings. The said information during the course of the first/original proceedings. The said information during the course of the first/original proceedings. The said information constitutes new and fresh evidence on which the Assessing Officer could constitutes new and fresh evidence on which the Assessing Officer could constitutes new and fresh evidence on which the Assessing Officer could have drawn inference and formed a prima facie opinion whether or not to have drawn inference and formed a prima facie opinion whether or not to have drawn inference and formed a prima facie opinion whether or not to initiate reassessment proc initiate reassessment proceedings. In the case of AGR Investment AGR Investment Limited (supra), the Division Bench in the penultimate paragraph has (supra), the Division Bench in the penultimate paragraph has (supra), the Division Bench in the penultimate paragraph has recorded as under: recorded as under:- "23. The present factual canvas has to be scrutinized on the "23. The present factual canvas has to be scrutinized on the "23. The present factual canvas has to be scrutinized on the touchstone of touchstone of the aforesaid enunciation of law. It is worth noting the aforesaid enunciation of law. It is worth noting that the learned counsel for the petitioner has submitted with that the learned counsel for the petitioner has submitted with that the learned counsel for the petitioner has submitted with immense vehemence immense immense vehemence vehemence that that that the the the petitioner petitioner petitioner had had had entered entered into entered into into correspondence to have the documents but the Assessing Officer correspondence to have the documents but the Assessing Officer correspondence to have the documents but the Assessing Officer treated them as object treated them as objections and made a communication. However, ions and made a communication. However, on a scrutiny of the order, it is perceivable that the authority on a scrutiny of the order, it is perceivable that the authority on a scrutiny of the order, it is perceivable that the authority has passed the order dealing with the objections in a very careful passed the order dealing with the objections in a very careful passed the order dealing with the objections in a very careful and studied manner. He has taken note of the fact that the and studied manner. He has taken note of the fact that the and studied manner. He has taken note of the fact that the transactions involving Rs transactions involving Rs. 27 lakhs mentioned in the table in . 27 lakhs mentioned in the table in annexure P annexure P-2 constitute fresh information in respect of the assessee 2 constitute fresh information in respect of the assessee as a beneficiary of bogus accommodation entries provided to it and as a beneficiary of bogus accommodation entries provided to it and as a beneficiary of bogus accommodation entries provided to it and represents the undisclosed income. The Assessing Officer has represents the undisclosed income. The Assessing Officer has represents the undisclosed income. The Assessing Officer has referred to the subseq referred to the subsequent information and adverted to the concept uent information and adverted to the concept of true and full disclosure of facts. It is also noticeable that there of true and full disclosure of facts. It is also noticeable that there of true and full disclosure of facts. It is also noticeable that there was specific information received from the office of the Director of was specific information received from the office of the Director of was specific information received from the office of the Director of Income- - tax (Inv-V) as regards the transactions entered into by the V) as regards the transactions entered into by the assessee essee-company with a number of concerns which had made company with a number of concerns which had made accommodation entries and they were not genuine transactions. As accommodation entries and they were not genuine transactions. As accommodation entries and they were not genuine transactions. As we perceive, it is neither a change of opinion nor does it convey a we perceive, it is neither a change of opinion nor does it convey a we perceive, it is neither a change of opinion nor does it convey a particular interpretation of a specific provision which was done in particular interpretation of a specific provision which was done in particular interpretation of a specific provision which was done in a particular manner in the original assessment and sought to be particular manner in the original assessment and sought to be particular manner in the original assessment and sought to be done in a different manner in the proceeding under done in a different manner in the proceeding under section 147 of the Act. The reason to believe has been appropriately understood the Act. The reason to believe has been appropriately understood the Act. The reason to believe has been appropriately understood by the As by the Assessing Officer and there is material on the basis of which sessing Officer and there is material on the basis of which the notice was issued. As has been held in Phool Chand Bajrang the notice was issued. As has been held in Phool Chand Bajrang the notice was issued. As has been held in Phool Chand Bajrang Lal [1993] 203 ITR 456 (SC), Bombay Pharma Products [1999] 237 Lal [1993] 203 ITR 456 (SC), Bombay Pharma Products [1999] 237 Lal [1993] 203 ITR 456 (SC), Bombay Pharma Products [1999] 237 ITR 614 (MP) and Anant Kumar Saharia [1998] 232 ITR 533 ITR 614 (MP) and Anant Kumar Saharia [1998] 232 ITR 533 ITR 614 (MP) and Anant Kumar Saharia [1998] 232 ITR 533 (Gauhati), the (Gauhati), the court, in exercise of jurisdiction under court, in exercise of jurisdiction under article 226 of the Constitution of India pertaining to sufficiency of reasons for the Constitution of India pertaining to sufficiency of reasons for the Constitution of India pertaining to sufficiency of reasons for formation of the belief, cannot interfere. The same is not to be formation of the belief, cannot interfere. The same is not to be formation of the belief, cannot interfere. The same is not to be judged at that judged at that stage. In SFIL Stock Broking Ltd. [2010] 325 ITR 285 stage. In SFIL Stock Broking Ltd. [2010] 325 ITR 285 (Delhi), the Bench has interfered as it was not discernible whether (Delhi), the Bench has interfered as it was not discernible whether (Delhi), the Bench has interfered as it was not discernible whether the Assessing Officer had applied his mind to the information and the Assessing Officer had applied his mind to the information and the Assessing Officer had applied his mind to the information and M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 15 M/s Balaji Bullion & ITA No. 3599/M/2018 independently arrived at a belief on the basis of independently arrived at a belief on the basis of material which he material which he had before him that the income had escaped assessment. In our ad before him that the income had escaped assessment. In our ad before him that the income had escaped assessment. In our considered opinion, the decision rendered therein is not applicable considered opinion, the decision rendered therein is not applicable considered opinion, the decision rendered therein is not applicable to the factual matrix in the case at hand. to the factual matrix in the case at hand. In the case of Sarthak In the case of Sarthak Securities Co. Pvt. Ltd. [2010] 329 ITR 110 (Delhi), the Divi Securities Co. Pvt. Ltd. [2010] 329 ITR 110 (Delhi), the Divi Securities Co. Pvt. Ltd. [2010] 329 ITR 110 (Delhi), the Division Bench had noted that certain companies were used as conduits but Bench had noted that certain companies were used as conduits but Bench had noted that certain companies were used as conduits but the assessee had, at the stage of original assessment, furnished the assessee had, at the stage of original assessment, furnished the assessee had, at the stage of original assessment, furnished the names of the companies with which it had entered into trans the names of the companies with which it had entered into trans the names of the companies with which it had entered into trans- actions and the Assessing Officer was made aware of the actions and the Assessing Officer was made aware of the actions and the Assessing Officer was made aware of the situation and further the reason recorded does not indicate application of and further the reason recorded does not indicate application of and further the reason recorded does not indicate application of mind. That apart, the existence of the companies was not disputed mind. That apart, the existence of the companies was not disputed mind. That apart, the existence of the companies was not disputed and the companies had bank accounts and payments were made and the companies had bank accounts and payments were made and the companies had bank accounts and payments were made to the assessee to the assessee-company through the banking channel. Reg company through the banking channel. Regard being had to the aforesaid fact situation, the court had interfered. being had to the aforesaid fact situation, the court had interfered. being had to the aforesaid fact situation, the court had interfered. Thus, the said decision the said decision is also distinguishable on the factual is also distinguishable on the factual score."

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 16 M/s Balaji Bullion & ITA No. 3599/M/2018 differences were pointed out. In view of the aforesaid position, we answer nces were pointed out. In view of the aforesaid position, we answer nces were pointed out. In view of the aforesaid position, we answer the question of law mentioned above in negative, i.e., in favour o f the the question of law mentioned above in negative, i.e., in favour o f the the question of law mentioned above in negative, i.e., in favour o f the Revenue and against the assessee. The appeal is accordingly allowed. Revenue and against the assessee. The appeal is accordingly allowed. Revenue and against the assessee. The appeal is accordingly allowed.” 4.6 In view of the above discussion, we rejec In view of the above discussion, we reject the contention of the t the contention of the assessee for challenging the reassessment proceedings on the assessee for challenging the reassessment proceedings on the assessee for challenging the reassessment proceedings on the ground of change of opinion and the additional ground No. 2 and 3 ground of change of opinion and the additional ground No. 2 and 3 ground of change of opinion and the additional ground No. 2 and 3 of the appeal of the assessee are dismissed. of the appeal of the assessee are dismissed.

5. In additional ground No. 4 the assessee has return of inc In additional ground No. 4 the assessee has return of inc In additional ground No. 4 the assessee has return of income challenged that Assessing Officer in the reasons recorded there was challenged that Assessing Officer in the reasons recorded there was challenged that Assessing Officer in the reasons recorded there was a failure on the part of the assessee in not disclosing the facts fully a failure on the part of the assessee in not disclosing the facts fully a failure on the part of the assessee in not disclosing the facts fully and truly.

5.1 We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. relevant material on record. The assessee has relied on the decision ssessee has relied on the decision of the Hindustan Lever Ltd. v. R.B. Wadkar 268 ITR 0332 (Bom.) of the Hindustan Lever Ltd. v. R.B. Wadkar 268 ITR 0332 (Bom.) of the Hindustan Lever Ltd. v. R.B. Wadkar 268 ITR 0332 (Bom.) wherein it is held that the Assessing Officer in the reasons recorded wherein it is held that the Assessing Officer in the reasons recorded wherein it is held that the Assessing Officer in the reasons recorded nowhere stated that in the necessary in the assessment of that nowhere stated that in the necessary in the assessment of that nowhere stated that in the necessary in the assessment of that assessment year and the r assessment year and the reassessment proceedings were quashed eassessment proceedings were quashed and held invalid. Wherein in the instant case we find that the and held invalid. Wherein in the instant case we find that the and held invalid. Wherein in the instant case we find that the Assessing Officer in the reasons recorded as duly mentioned the Assessing Officer in the reasons recorded as duly mentioned the Assessing Officer in the reasons recorded as duly mentioned the fact the assessment was reopened was reopened after expiry of four years and he expiry of four years and he accordingly obtained ed necessary permission from the appropriate permission from the appropriate authority. The Assessing Officer has also duly mentioned that authority. The Assessing Officer has also duly mentioned that authority. The Assessing Officer has also duly mentioned that income escaped within the meaning of section 147 of the Act which income escaped within the meaning of section 147 of the Act which income escaped within the meaning of section 147 of the Act which includes the proviso to section 147. The relevant reasons recorded includes the proviso to section 147. The relevant reasons recorded includes the proviso to section 147. The relevant reasons recorded are reproduced as under: are reproduced as under:

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 17 M/s Balaji Bullion & ITA No. 3599/M/2018 ANNEXURE REASONS FOR REOPENING THE ASSESSMENT U/S 148 OF THE I.T. ACT, 1961 REASONS FOR REOPENING THE ASSESSMENT U/S 148 OF THE I.T. ACT, 1961 REASONS FOR REOPENING THE ASSESSMENT U/S 148 OF THE I.T. ACT, 1961 Name of the Assessee Name of the Assessee M/s Balaji Bullion & Commodities India Pvt. Ltd. M/s Balaji Bullion & Commodities India Pvt. Ltd. Pan AADCN 0236 F Assessment year 2009 Assessment year 2009-10 “Search &e seizure seizure action /a 1321) of the IT. Act, 196) wan carted out at /a 1321) of the IT. Act, 196) wan carted out at thy residential premises of Shri Manoj B Punamiya and Shri Arvind Vyas residential premises of Shri Manoj B Punamiya and Shri Arvind Vyas residential premises of Shri Manoj B Punamiya and Shri Arvind Vyas and others by the Investigation and others by the Investigation wing, Mumbai on 31.020 and subsequent on 31.020 and subsequent dates in which the assesse dates in which the assessee was one of the associates. The assesse was one of the associates. The assessee had fled return of income u/s 153A for A.Y. 2009 fled return of income u/s 153A for A.Y. 2009-10 on 24.08.2 10 on 24.08.2011 declaring total income at Rs. 55,95,863/ total income at Rs. 55,95,863/-. Assesent 474,41,51,670/ Assesent 474,41,51,670/- u/s 143(3) r.w.. 153A was completed on 07,08.2012 determining total income at was completed on 07,08.2012 determining total income at was completed on 07,08.2012 determining total income at 474,41,51670/ 474,41,51670/-.

5. However, as per the amended Section 151(1) of the IT, Act 5. However, as per the amended Section 151(1) of the IT, Act 5. However, as per the amended Section 151(1) of the IT, Act (w.e.f..6.2015), no notice shall be issued u/s. 148 by an Assessing Officer, (w.e.f..6.2015), no notice shall be issued u/s. 148 by an Assessing Officer, (w.e.f..6.2015), no notice shall be issued u/s. 148 by an Assessing Officer, after the expiry of a period of four years from the end of t after the expiry of a period of four years from the end of t after the expiry of a period of four years from the end of the relevant assessment year, unless the Principal Chief Commissioner or Chief assessment year, unless the Principal Chief Commissioner or Chief assessment year, unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied on Commissioner or Principal Commissioner or Commissioner is satisfied on Commissioner or Principal Commissioner or Commissioner is satisfied on the reasons recorded by the Assessing Officer, that it is a fit case for the the reasons recorded by the Assessing Officer, that it is a fit case for the the reasons recorded by the Assessing Officer, that it is a fit case for the issue of such notice. issue of such notice.

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 18 M/s Balaji Bullion & ITA No. 3599/M/2018

6. In the additional ground No. 5, the assessee has raised the In the additional ground No. 5, the assessee has raised the In the additional ground No. 5, the assessee has raised the issue that since the assessment passed u/s 153A r.w.s. 143(3) of issue that since the assessment passed u/s 153A r.w.s. 143(3) of issue that since the assessment passed u/s 153A r.w.s. 143(3) of the Act was quashed and therefore, he could not have passed the the Act was quashed and therefore, he could not have passed the the Act was quashed and therefore, he could not have passed the subsequent reassessment order, the as subsequent reassessment order, the assessee has further raised sessee has further raised question whether the additions made u/s 153A r.w.s. 143(3) of the question whether the additions made u/s 153A r.w.s. 143(3) of the question whether the additions made u/s 153A r.w.s. 143(3) of the Act could be sustained in reassessment proceedings. Act could be sustained in reassessment proceedings. Act could be sustained in reassessment proceedings.

6.1 We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. In the case afte relevant material on record. In the case after filing return of income r filing return of income by the assessee assessment u/s 153A of the Act was completed by by the assessee assessment u/s 153A of the Act was completed by by the assessee assessment u/s 153A of the Act was completed by the Assessing Officer which has been quashed by the Tribunal vide the Assessing Officer which has been quashed by the Tribunal vide the Assessing Officer which has been quashed by the Tribunal vide order dated 29.04.2022 whereas the reassessment proceedings in order dated 29.04.2022 whereas the reassessment proceedings in order dated 29.04.2022 whereas the reassessment proceedings in the case were initiated on 31.03.2016 the case were initiated on 31.03.2016 and therefore, the Assessing and therefore, the Assessing Officer has validly reopened the assessment on 31.03.2016 and Officer has validly reopened the assessment on 31.03.2016 and Officer has validly reopened the assessment on 31.03.2016 and subsequent quashing of the said assessment cannot be invalidates subsequent quashing of the said assessment cannot be invalidates subsequent quashing of the said assessment cannot be invalidates the reassessment proceedings. As the proceedings u/s 153A of the the reassessment proceedings. As the proceedings u/s 153A of the the reassessment proceedings. As the proceedings u/s 153A of the Act has been quashed then the reas Act has been quashed then the reassessment relied back to the file sessment relied back to the file

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 19 M/s Balaji Bullion & ITA No. 3599/M/2018 by the assessee. In response to u/s 148 of the Act. However, as far by the assessee. In response to u/s 148 of the Act. However, as far by the assessee. In response to u/s 148 of the Act. However, as far as the additions made u/s 153A r.w.s. 143(3) of the Act is as the additions made u/s 153A r.w.s. 143(3) of the Act is as the additions made u/s 153A r.w.s. 143(3) of the Act is concerned and same cannot be sustained and only additions which concerned and same cannot be sustained and only additions which concerned and same cannot be sustained and only additions which has been made in the reassessmen has been made in the reassessment proceedings could be t proceedings could be considered the additional ground No. 5 of the appeal is accordingly considered the additional ground No. 5 of the appeal is accordingly considered the additional ground No. 5 of the appeal is accordingly partly allowed.

7. Now we take up the regular grounds raised by the assessee. Now we take up the regular grounds raised by the assessee. Now we take up the regular grounds raised by the assessee.

7.1 We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. n record. As far as regular grounds of appeal are As far as regular grounds of appeal are concerned the Ld. counsel for the assessee has taken only concerned the Ld. counsel for the assessee has taken only concerned the Ld. counsel for the assessee has taken only argument that Shri Pravin Kumar Jain has retracted his statement argument that Shri Pravin Kumar Jain has retracted his statement argument that Shri Pravin Kumar Jain has retracted his statement recorded by the Income recorded by the Income-tax Authorities on the time of the search tax Authorities on the time of the search and the Assessing Officer has not examined Shri Pravin Kumar Jain Officer has not examined Shri Pravin Kumar Jain Officer has not examined Shri Pravin Kumar Jain after he is retracted his statement and therefore, after he is retracted his statement and therefore, the addition made the addition made by the Assessing Officer u/s 68 of the Act cannot be sustained. by the Assessing Officer u/s 68 of the Act cannot be sustained. by the Assessing Officer u/s 68 of the Act cannot be sustained. However, we find that the Assessing Officer has firstly not made the However, we find that the Assessing Officer has firstly not made the However, we find that the Assessing Officer has firstly not made the addition merely on the basis of statement, the Assessing Officer on merely on the basis of statement, the Assessing Officer on merely on the basis of statement, the Assessing Officer asked the assessee to discharge its onus u/s 68 of the Act whereas asked the assessee to discharge its onus u/s 68 of the Act whereas asked the assessee to discharge its onus u/s 68 of the Act whereas assessee failed in doing so. in doing so. The parties were not found at the he parties were not found at the address provided and the assessee did not provide new address or address provided and the assessee did not provide address provided and the assessee did not provide produce those parties for examination before the Assessing Officer parties for examination before the Assessing Officer parties for examination before the Assessing Officer and therefore, the Ld. Assessing Officer is justified in making and therefore, the Ld. Assessing Officer is justified in making and therefore, the Ld. Assessing Officer is justified in making addition. Further, the retraction statement of Shri Pravin Kumar addition. Further, the retraction statement of Shri Pravin Kumar addition. Further, the retraction statement of Shri Pravin Kumar Jain were never produce before the Assessing Officer or the Ld. Jain were never produce before the Assessing Officer or the Ld. Jain were never produce before the Assessing Officer or the Ld.

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 20 M/s Balaji Bullion & ITA No. 3599/M/2018 CIT(A) before us also a photocopy has been filed that too without fore us also a photocopy has been filed that too without fore us also a photocopy has been filed that too without any application that to additional evidence. We are of the view that any application that to additional evidence. We are of the view that any application that to additional evidence. We are of the view that assessee can produce a retraction affidavit from Shri Pravin Kumar assessee can produce a retraction affidavit from Shri Pravin Kumar assessee can produce a retraction affidavit from Shri Pravin Kumar Jain and assessee could have produced the relevant director of the Jain and assessee could have produced the relevant director of Jain and assessee could have produced the relevant director of Bafna Exim Pvt. Ltd. for verification before the AO. But the assessee Bafna Exim Pvt. Ltd. for verification before the AO. But the assessee Bafna Exim Pvt. Ltd. for verification before the AO. But the assessee miserably failed in producing said party for verification by the miserably failed in producing said party for verification by the miserably failed in producing said party for verification by the Assessing Officer despite the facts that notice u/s 133(6) of the Act Assessing Officer despite the facts that notice u/s 133(6) of the Act Assessing Officer despite the facts that notice u/s 133(6) of the Act returned unserved at the address provided by th returned unserved at the address provided by the assessee. Thus e assessee. Thus neither the identity of the said party was not establish the Ld. neither the identity of the said party was not establish the Ld. neither the identity of the said party was not establish the Ld. CIT(A) was creditworthiness of the said party was also not CIT(A) was creditworthiness of the said party was also not CIT(A) was creditworthiness of the said party was also not established having contrary has been filed before us to substantiate established having contrary has been filed before us to substantiate established having contrary has been filed before us to substantiate the creditworthiness of the parties. In the ci the creditworthiness of the parties. In the circumstances, we uphold rcumstances, we uphold the finding of the Ld. CIT(A) on the issue in dispute and dismissed the finding of the Ld. CIT(A) on the issue in dispute and dismissed the finding of the Ld. CIT(A) on the issue in dispute and dismissed the regular grounds of appeal of the assessee. the regular grounds of appeal of the assessee.

M/s Balaji Bullion & Commodities (India) Pvt. Ltd. 21 M/s Balaji Bullion & ITA No. 3599/M/2018