KAJAL BATRA,DELHI vs. ACIT,CIRCLE-52(1), DELHI

The CIT(A) has failed to appreciate that sum of Rs. 91,886/- disallowed by AO being interest on delay in payment to BPCL is neither penal nor prohibited under any law but only compensatory in nature. The expenditure should have been allowed. 10. The assessee prays that he may be allowed to amend, alter or forgo any of the grounds at the time of hearing.” 3. The relevant facts giving rise to this appeal are that the Ld. Assessing Officer (‘AO’), based on the information in his possession, noticed that the assessee had two Permanent Account Numbers (‘PAN’) i.e. AGQPB4318Q & ADTPB7505R and had deposited cash of Rs.8,56,56,700/- during the relevant year. The assessee has filed her Income Tax Return (‘ITR’) declaring income of Rs.1,42,76,820/- on PAN: ADTPB7505R. The AO further noticed that the sum deposited during the demonetization period in the bank account tagged with the PAN: AGQPB4318Q, had not been disclosed in the ITR. Therefore, the Ld. AO initiated reopening assessment proceedings. However, no response was filed by the assessee. Therefore, the AO carried out investigations directly from the bank and noticed that the assessee had maintained two bank accounts with two different PANs having aggregate credits of Rs.71,41,14,240/- and Rs.2,53,62,112/- Federal Bank account No. 168002000000698 and 16800100008064 respectively. Out of which, cash of Rs.8,54,56,700/- had been deposited in Federal Bank account No. 168002000000698 and Rs.2,53,62,112/- in the Federal Bank account No. 16800100008064. The Ld. AO, observing that the assessee’s turnover as per the ITR is Rs.60,79,15,769/- as against the aggregate credits of Rs.71,41,14,240/- as per the bank account shown in the ITR and the assessee’s failure to explain the said credits in the Kajal Batra bank account No. 168002000000698, taxed the sum of Rs.10,61,98,471/- (difference of Rs.71,41,14,240/- and Rs.60,79,15,769/-). Further, the Ld. AO also taxed the credits aggregating to Rs.2,53,62,112/- in the bank account No. 16800100008064 on the reasoning that this bank account is not disclosed in the ITR and the assessee failed to explain the credits in the said bank account. Besides, certain business expenditure was also disallowed by the Ld. AO. 3.1 Aggrieved, the assessee filed appeal before the Ld. CIT(A) challenging the reopening of the assessment and taxability of Rs.10,61,98,471/- and 2,53,62,112/-. The Ld. CIT(A) dismissed the grounds of appeal challenging the reopening of the assessment. However, he observing as under remanded back the case to the AO to be decided afresh on merit as under: “10. The assessee has contested the reopening proceedings u/s. 148 of the Income Tax Act vide grounds of appeal No. 1, 1.1, 1.3 and 1.4. 10.1 It is stated that the AO has not followed the procedure laid down by the Hon'ble Supreme Court in the case of GKN Drive shaft India Ltd Vs ITO 259 ITR 19. Further, it is contested that the reasons recorded have no Nexus with the additions made by the AO in the reassessment order. The assessee has expressed apprehension that the approval under section 151 was accorded after recording the requisite satisfaction in accordance with the law or otherwise. 10.2 I have carefully considered the facts and circumstance of the case and record available along with submission of the assessee. It is found that the assessing officer as issued notice under section 148 on 31.12.2019 directing assessee to submit return of income. However, it is found that the assessee has not filed any return of income in response to the notice under section 148 of the IT Act. 10.3 Further, it is found that the assessing officer noted at page 4 of the assessment order that the independent enquiries were made, the reasons for Kajal Batra recorded, the case was put up for sanction before the Joint Commissioner of Income Tax. Range-54, New Delhi and after the due approval of the competent authority in notice under section 148 was issued. 10.4 In any case, it may be appreciated that since the assessee has not filed valid return of income within the prescribed time limit under section 148 of the IT Ad therefore, the procedure laid down by the order of the Supreme Court in the case of In GKN Driveshafts (India) Ltd. Vs ITO & Ors. (259 ITR 19) is not applicable in the case of the assessee wherein the Hon. Supreme Court clarified that when notice u/s 148 is issued, the proper course of action for the notice is to file return and if he so desires, to seek reasons for issuing notice. The AO is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the AO is bound to dispose of the same by passing a speaking order. 10.5 Further, it is seen that the assessing officer has recorded reasons precisely for the undisclosed income of Rs. 8,56,56,700/- was escaped assessment and the case was reopened on the basis of the cash deposits made by the assessee during the demonetization. The same is found mention in the assessment order wherein the assessing officer has made an addition on the basis of difference between the cash deposits/credit entries in the bank account and the total receipts disclosed in the profit and loss account. As such, there is a direct Nexus between the reasons for which the case was reopened and the addition made by the Assessing Officer. 10.6 Further, it may be appreciated that- a. It is well settled legal maxim that the reopening proceedings is initiation of reassessment and at the stage of reassessment it is not necessary to prove that the income has escaped assessment and it is merely a prima facie charge against the Appellant as held by the Hon'ble Supreme Court in the case of Raymond Woollen Mills Limited Vs ITO & Anr. (SC) 236 ITR 34. b. Further, it may be appreciated that information for reopening of the case may come from external source or even from matter is already on record or may be derived from discovery of new and important matter or racial facts. The word information' would also include true and correct state of law derived from relevant judicial decisions either of the IT Authorities or courts of law. Whether the ground on which the original assessment is based is held to be erroneous by Hon'ble Supreme Court in some other case, that will also amount to a fresh information which comes into existence subsequent to the Kajal Batra original assessment. Taxpayer would not be allowed to take advantage of an oversight or a mistake committed by tax authority. This principle is laid down by the Hon'ble Supreme Court in the case of Kalyanji Mavji & Co. Vs CIT (SC) 102 ITR 287. c. It may be appreciated that the information with respect to the escapement of income may come from any source and if the assessee has not disclosed income with respect to the live link' with the information received the assessing officer is well within its right to reopen the case. In the case of ITO Vs Gurinder Kaur (ITAT, Del) 102 ITD 189 the Hon'ble ITAT. Delhi held that letter of CIB wing constitute material for reopening and reopening pursuant to such information was held valid. It may be appreciated that if the information received from the investigation wing and the notices issued pursuant to such information the reopening was held valid and get as mentioned in the judicial pronouncement as under- 1. AGR Investments Ltd. Vs Addl. CIT& Anr. (Del) 333 ITR 146 2. Shalimar Buildcon (P) Ltd. Vs ITO (ITAT, Jaipur) 136 TTJ 701 d. Further, it may be appreciated that what is necessary to re-open an assessment is not final verdict but a prima facie reason and once such a reason is recorded by assessing authority he assumes juri iction to issue notice u/s 148 as has been in judicial pronouncements as under: 1. ACITVs Tube Investments of India Ltd. (ITAT, Chennai-TM) 133 ITD 79 2 Rajat Export Import India Pvt. Ltd. Vs ITO (Del) 341 ITR 135 e. It may be appreciated that Notice u/s 148 can be issued on the basis of information in a non-est return Non-est return is not a bar to issue notice u/s 148 as has been held in the case of Rajasthan State Handloom Dev. Corpn, Ltd. Vs DCIT (ITAT, Jp) 64 ITD 356. f. It is well settled law that where return is processed u/s 143(1), 143(1 the only condition to be satisfied for re-opening is taxable income has escaped assessment and Assessee's plea that no fresh material before the assessing Officer warranting re-opening, is not relevant as held in the judicial pronouncement as under- 1. Kone Elevator India P. Ltd. Vs ITO (Mad) 340 ITR 454 2. CITVs Ideal Garden Complex P. Ltd. (Mad) 340 ITR 609 3. ACITVS Maersk Global Service Centre (India) (P) Ltd. (ITAT, Mum) 66 DTR 90 Kajal Batra g. It may be appreciated that when there is no discussion on the issue in the assessment order and no details were called for by the Assessing Officer or filed by the assessee on the issue, no finding either positive or negative was arrived at during the course of the original assessment proceedings in such situations and facts of the case there is no question of change of opinion as upheld by the jurisprudence as under- 1. A.L.A. Firm Vs. CIT(Mad) 102 ITR 622 2. Ess Kay Engineering Co. (P) Ltd. Vs CIT(SC) 247 ITR 818 3. Revathy C.P. Equipments Ltd. Vs DCIT& Ors. (Mad) 241 ITR 856 4. EMAIndia Ltd. Vs ACIT(All) 30 DTR 82 h. It is worthwhile to mention that the argument of change of opinion comes to rescue of assessee only when Assessing Officer has taken one of permissible views at the time of original proceedings. A wrong application of law cannot be held as permissible view and that can always be changed for appreciating law as held by Hon'bl Kolkatta ITAT in the case of Som Dutt The reliance is placed on following judicial pronouncements- 1. ITO Vs Lakhmani Mewal Das (SC) 103 ITR 437 2. Phool Chand Bajrang Lal and Another Vs ITO & Anr. (SC) 203 ITR 456 3. Raymond Woollen Mills Vs ITO & Anr. (SC) 236 ITR 34 4. Desh Raj Udyog Vs ITO (All) 318 ITR 6 j. Therefore, considering the facts and circumstance of the case, submission made by the assessee and the decisions as quoted supra, the assessing officer has rightly initiated the reassessment proceedings in the case of the assessee on the basis of information received and available on record. Therefore, ground No. No. 1, 1.1, 1.3 and 1.4. which challenges the validity of reopening proceedings are dismissed. 11. It is found that in spite of repeated opportunities rendered by the assessing officer, the appellant did not make any compliance before the AO or made partial compliance to support his claim with respect to the impugned transactions undertaken by the assessee to the satisfaction of AO. Therefore, the AO was forced to pass assessment order u/s. 144 of the Income Tax Act on the basis of material available on record and made impugned addition to the total income of the assessee has mentioned supra. Kajal Batra

1 During the appellate proceedings, the appellant was once again given various opportunities to substantiate his claim along with requisite documents before the undersigned. However, no request was made or details submitted as to which document was submitted before the AO and which document was not submitted before the AO. Also, no specific request was made for admission of additional evidences under Rule 46A of the IT Rules. 11.2 During the course of appellate proceedings, the assessee was and to furnish the details along with documentary evidences for the reasons and circumstances under which no compliance was made before the Appellate Authority vide notice dated 21/10/2024 However, the assessee has not submitted any Details with documentary evidence or reasons of non- compliance before the AO. 11.3 Therefore, considering the facts and circumstances of the case, it is apparent that the AD has rendered appropriate and legally permissible opportunity to the assessee by following the principle of natural justice. During the course of appellate proceedings, the assessee was rendered opportunity of being heard to reiterate the principle of natural justice. On both occasions, the assessee has failed to avail the opportunity to be heard in sync with principle of natural justice. 11.4 However, in all fairness, the assessee may be given another opportunity of being heard before the AO within the meaning of section 251 (1) (a) of Income Tax Act, 1961 to meet ends of the justice. 11.5 It may be appreciated that the provisions of section 251 (1) (a) of the Income Tax Act which deals with powers of the CIT(A), has been amended by Finance (No.2) Act, 2024 by incorporating following proviso w.e.f. 1.10.2024 as under: "Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment. 11.6 Further, the memorandum has explained the need of granting power of setting aside of appeals to the CIT(A) as under "3. It has been found that in the best judgment cases, tax payers remain non-responsive in the letters or notices issued by the Faceless Assessing Kajal Batra

2 Further, the Ld. AR submitted that the Ld. AO had not recorded any reason for taxing of credit of Rs.10,61,98,471/- in the reason for the reopening assessment. Hence, the said addition was uncalled for. Reliance was placed on the decision of the Hon’ble Delhi High Court in the case of Sunlight Tour and Travels (P.) Ltd. [2024] 169 taxmann.com 673 (Delhi). Further, reliance was placed on the following decisions: - i. S.R.Cold Storage (2022) 141 Taxman.com 305 (All.) ii. Gandhibag Sahakari Bank Ltd. (2023) 156 Taxman.com 221 iii. Saraswati Petrochem (P) Ltd. (2023) 156 taxman.com 471 (Del.) iv. JG’s Departmental Store (2025) 173 Taxman.com 618(Del) v. Ashapura Transport Company (2025) 178 Taxman.com 88 (Guj.) 5.3 On merit, the Ld. AR submitted that the assessee had filed the detailed submission for the first time on 11.11.2024 before the Ld. CIT(A) and prayed for admission of additional evidence. Hence, the findings of the Ld. CIT(A) that the assessee had not made any request for admission of additional evidence was not correct. Further, it was submitted that the assessee had explained each and every entry to credit to the Saving Bank Account 16800100008064 and the difference between the credits appearing in the bank account No. 168002000000698 and the turnover as per the ITR. Thus, he argued that both additions required to be deleted on merit. 6. On the other hand, the Ld. CIT-DR contended that the AO had recorded reasons for reopening the assessment. He submitted that the Ld. AR had not Kajal Batra brought the copy of reasons recorded for reopening the assessment on the record. only the part of reason extracted in the assessment order had been relied upon by the Ld. AR. It is not disputed that the Saving Bank Account 16800100008064 had been disclosed in the ITR; hence, the deposit in the said bank account inferred as unexplained in the reasons recorded for reopening the assessment could not be questioned. Non-compliance and non-objecting the reasons recorded for reopening the assessment before the Ld. AO itself proved that the reopening was justified, contended the Ld. CIT-DR. The aggregate credits in other bank account were quite more than what was disclosed in the books of account/turnover. Since, no explanation was ever offered before the Ld. AO; therefore, the AO was justified reopening the assessment. Further, on merit, the Ld. CIT-DR submitted that the Ld. AO, in case of consistent non-compliance during the reassessment proceedings, had no option except to complete the assessment ex-parte. Further, he drew our attention to the finding of the Ld. CIT(A), who had remanded back the entire issue to the Ld. AO to be decided afresh. Hence, he contended that no prejudice was caused to the assessee to challenge the impugned order as there was no infirmity in the finding of the Ld. CIT(A). 7. We have heard both parties and have perused the material available on the record. As far as the reopening of the case was concerned, the Ld. CIT(A) had given very detailed findings and the assessee has not brought the copy of reasons recorded for reopening the assessment on the record. The information in possession with the Ld. AO that the assessee has maintained two bank Kajal Batra accounts in Federal Bank and has deposited crores of rupees in these bank accounts during demonetization period; prima-facie leads to infer the escapement of income particularly when one of the bank accounts is not disclosed in the ITR and assessee did not file any explanation thereof. 8. The Hon’ble Supreme Court in the case of Raymond Woollen Mills Ltd. 236 ITR 34 have held that in determining whether commencement of reassessment proceedings was valid it has only to be seen whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. Similar view also gets echoed in the decision of the Hon’ble Gujarat High in the case of Vasudev Fatandas Vaswani (2018-TIOL- 2305-HC-AHM-IT); wherein the Hon’ble Gujarat High Court has held that when issuing notice for re-opening assessment, the AO is only required to show reasonable belief that income escaped assessment & is not required to establish the same beyond reasonable doubt. The Hon’ble Supreme Court in the case of Aravali Infrapower Ltd. 2017-TIOL-42-SC-IT has confirmed the decision of The Hon’ble High Court, whereby it was held that reopening of assessment is justified, when the bank statements as well as the ITR form disclosing returns, raises more questions than satisfying the queries already raised. Here, we find that deposits in bank accounts as well as turnover disclosed in the ITR, raise more questions than satisfying the queries already raised. In view of the facts of the case in entirety and above-mentioned case laws in this para, we do not see any infirmity in the impugned order Kajal Batra dismissing the juri ictional/ reopening issue as the Ld. AO has sufficient reason to prima-facie infer that the income of the assessee has escaped assessment. 9. Here in this case, one important aspect which needs to be kept in mind that the reopening has been done within four years from the end of the relevant assessment year. Thus, the law contained in proviso to section 147 of the Act will not apply whereby ascribing of failure on part of the assessee by the AO is sine-qua-non to acquire the juri iction beyond the period of 4 years. 10. As per the Explanation of Section 147 of the Act, the Ld. AO had all the powers to examine and to make any addition even other than the reasoning recorded for reopening the assessment. Here, part of the deposits in one bank account and entire deposits in the other bank account which not disclosed in the ITR were held unexplained and liable to be taxed in the reasons recorded for reopening the assessment and the reassessment is found confined to that only. The Ld. AR has not brought any material on the record to contradict the finding of the Ld. CIT(A) on the issue of reopening of assessment on the reasoning that the unexplained deposits in bank accounts have escaped assessment. Therefore, we do not see any infirmity in the finding of the Ld. CIT(A) that reopening is justified; hence, the grounds challenging the reopening of the assessment are dismissed and decided against the assessee. Kajal Batra

Since the Ld. CIT(A) has remanded the issue of taxability of bank deposits of Rs.10,61,98,471/- and Rs.2,53,62,112/- to the Ld. AO for fresh adjudication; hence, we are refraining to comment on the merit of the issue as the same has not been examined by the Authorities below. Thus, we do not see any infirmity in the finding of the Ld. CIT(A) on this score; hence, we decline to interfere with. The grounds challenging the taxability of bank deposits of Rs.10,61,98,471/- and Rs.2,53,62,112/- are thus dismissed. 12. In the result, the appeal of the assessee stands dismissed as above. Order pronounced in open Court on 30th October, 2025 (VIJAY PAL RAO) (AVDHESH KUMAR MISHRA) VICE PRESIDENT ACCOUNTANT MEMBER