ALAPPAT JEWELS Vs. ASSISTANT COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The petitioner has approached this court, seeking for issuance of a writ of mandamus directing the respondents to comply with the directions in the judgment reported in Alappat Jewels v. Asst. CIT, 2013 350 ITR 471 . The petitioner also seeks for a stay of exhibit P10 notice pending disposal of the writ petition. The case of the petitioner is that the assessment in respect of the year 2006-07 under section 143(3) of the Income-tax Act, 1961, finalized as per exhibit P5, was sought to be reopened under section 147, referring to escaped assessment and exhibit P6 notice under section 148 was issued in this regard. The petitioner sought for reasons to be given in writing, vide exhibit P7, in tune with the law declared by the apex court in GKN Drive-shafts (India) Ltd. v. ITO, 2003 259 ITR 19 . This, was furnished, vide exhibit P8, dated April 25, 2012.

(2.) In the meanwhile, the petitioner approached this court by way of W.P. (C.) No. 13397 of 2012, challenging the course and proceedings, stating that the proceedings were barred by limitation, that there was no fault or lapse or non-disclosure of any material facts enabling the respondents to reopen the assessment beyond the stipulated period of four years and the necessity to pass a "speaking order", as sought for, vide exhibit P9, dated May 4, 2012. It was also contended by the petitioner, that it was only by virtue of a "change in opinion", that the assessment was sought to be reopened, which was not a ground in view of the law declared by the apex court in CIT v. Kelvinator of India Ltd. and Etcher Ltd., 2010 320 ITR 561 . It was further contended by the petitioner that the respondents were not justified in proceeding with the reopening of the assessment, on the basis of estimate procured from the petitioner in the course of survey conducted in the premises under section 133A and that the sworn statement given by the managing director of the firm at the time of survey on February 1, 2006, offering additional income of 1.5 crores for the assessment year 2006-07 was subsequently retracted and that the same was an immaterial piece of evidence to be reckoned for the purpose of assessment, in view of the settled position of law.

(3.) According to the respondents, the above investment was confirmed by the petitioner as per the letter dated February 3, 2006, as well, however, requesting that the same should not result in "complication in sales tax assessment" already finalized. It was contended from the part of the Revenue, that the verification of the books of account of the petitioner was only in respect of the entries already made; while the unaccounted investment naturally would not find a place in the books of account and as such, absolutely "no opinion was formed" by the concerned officer while passing exhibit P5 assessment order, more so when no reference was made to the survey and the disclosure effected on February 1, 2006. After hearing both the sides, this court held as per judgment dated August 22, 2012 in W.P. (C.) 13397 of 2012, whether there was any lapse/failure on the part of the assessee in having effected "full and true disclosure" of the particulars necessary for assessment for the year 2006-07 was a matter, to be looked into and decided with reference to the materials on record, including the statement dated February 1, 2006, and the subsequent letter dated February 3, 2006, in confirmation. This court observed that, no objection was filed by the petitioner to the notice and as such, no' interference was warranted at that stage. Accordingly, observing that no merit was being expressed, the petitioner was permitted to file objection, if any, within one month, simultaneously directing the concerned respondent to finalize the matter in accordance with law, as specified.