Rajbhushan Omprakash Dixit Vs DCIT (Bombay High Court)
Undisputed fact is that all these documents were before the Assessing Officer when the original scrutiny under assessment under Section 153A read with 143(3) was made. It was in this background that the Assessee had, in his objections, asserted that the documents relied upon in the reasons were very much available with the Assessing Officer earlier.
In this context, once the Department i.e. the Assessing Officer had certain information, material, or document before him during the assessment proceeding, irrespective of the source of such information, material, or document, the Assessee cannot be blamed for non-disclosure thereof.
Mr. Suresh Kumar, however, sought to rely on the Explanation 1 to Section 147 to contend that this would be a case of lack of true and full disclosure on the part of the Assessee. This Explanation reads as under :
“Explanation 1.- – Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso.”
As per this Explanation thus, production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the first proviso to Section 147. Here is not a case where the Assessee is seeking to rely on a disclosure which the Revenue can seek to bring within the fold of the said Explanation. Here is a case where the Department already had collected certain documents and materials which were before the Assessing Officer at the time of framing assessment. If the Assessing Officer did not, for some reason, advert to such material or did not utilize the same, he surely cannot allege that the Assessee failed to disclose truly and fully all material facts.
FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT
1. Heard learned Counsel for parties for final disposal of the petition.
2. The Petitioner, an individual, has challenged a notice dated 02/05/2017 issued by the Respondent Deputy Commissioner of Income Tax.
3. Brief facts are as under :
The Petitioner, at the relevant time, was working as an independent Director of one M/s. Toporder Properties Pvt. Ltd. which was one of the Sterling Biotech Ltd. group companies. The said group of entities, including the Petitioner, was subjected to search and seizure action under Section 132(1) of the Income Tax Act, 1961 (‘the Act’, for short) and survey operations under Section 133A of the Act on 28/06/2011. Subsequent to the search, the Assessee filed the return of income for the Assessment Year 2011-2012 declaring total income of Rs.7.20 Lakhs (rounded of). The Assessing Officer completed the assessment under Section 153A read with 143(3) of the Act on 20/03/2014 accepting the Petitioner’s returned income.
4. To reopen such assessment, he issued the impugned notice. In order to do so, he had recorded the following reasons :
“Return of Income for the year under consideration was filed 23.02.2012 declaring total income of Rs.7,20,916/. Subsequently, assessment u/s 153A r.w.s. 143(3) was finalized by the then DCIT, CC. 10, Mumbai on 20.03.2014 determining total income of Rs.7.20,980/.
Search & Seizure action u/s. 132(1) of the I.T. Act was conducted in the Sterling Group of cases on 28.06.2011 by the DDIT (Inv.) Unit VII (4), Mumbai. In the Search and Seizure action u/s. 132(1) several parties were involved at various places. Party No.17 conducted search at the premises of M/s. Sterling Biotech Ltd. at Sandesara Estate, Vadodara. During the course of search proceedings, the search party seized various documents being AnnexureA7, on perusal of AnnexureA7, it is observed that
i. AnnexureA7 consists of 152 pages.
(A) In the page no.8 dated 10.1.2011, the following entry is made interalia –
Rs. 20,00,000/- cash received fro Mr. R. B. Dixit at Delhi, the same is given to cash S.K.G. (through Gagan Dhawan).
The above entry in the seized document clearly reveals that the assessee had minimum cash in hand on 10.01.2011 of Rs.20,00,000. The cash possessed by the assessee is not forming part of assessee’s return of income for the year under consideration. This tantamount escapement of income within the meaning of Section 147 of the Income Tax Act.
Survey u/s. 133A was conducted in the case of M/s. PMT Machines Ltd., 20/B, Khatau Bldg., A. D. Marg, Fort, Mumbai by DDIT, (Inv) UnitI, on 28.6.2011. The survey was conducted simultaneously when the Search & Seizure action was taken in the case of M/s. Sterling Group of cases on 28.06.2011 by the DDIT (Inv.) Unit VII(4), Mumbai. During the course of survey action 133A the survey team impounded certain documents which includes Annexures A-4 and A-5 inter alia. On perusal of these Annexures it is observed that these impounded documents include vouchers. These vouchers show the payments have been made to Shri R. B. Dixit on various dates as detailed below :
