Pr. Commissioner Of Income Tax-1, Chandigarh v. M/S Goyal Builders

101IN THE HIGH COURT OF PUNJAB & HARYANA|AT CHANDIGARH he fITA No. 438 of 2018 (O&M)DECIDED ON: JANUARY 28, 2020 PR. COMMISSIONER OF INCOME TAX-1, CHANDIGARH VERSUS APPELLANT M/S GOYAL BUILDERS RESPONDENT CORAM: HON'BLE MR. JUSTICE AJAY TEWARIHON'BLE MR. JUSTICE AVNEESH JHINGAN Present:Mr. Yogesh Putney, Senior Standing Counselfor the appellant. AJAY TEWARI, J (Oral): KK K This appeal has been filed by the revenue against the orders ofthe Commissioner of Income Tax (Appeal)-3, Gurgaon and the Income TaxAppellate Tribunal Division Bench 'A', Chandigarh whereby, the stand of theassessee was accepted and notice under Section 148 of the Income Tax Act1961 (for short ‘the Act’) was set aside.2 The brief facts are that a search was conducted on the premisesunder Section 132(1) of the Act. Thereafter proceedings were initiated andultimately an order under Section 143 (3) of the Act was passed on29.12.2010. After a period of about 2 ’2 years a successor officer probablyrealised that there were glaring omissions in the original order under Section143 (3) of the Act and issued a notice under Section 148(1) of the Act statingthat payments of448,00,000/- odd had been made by the assessee in cashcontrary to Section 40A(3) read with Rule 6DD of the Income Tax Rules1962 (for short ‘the Rules’) and framed re-assessment. In subsequentproceedings the Commissioner and Tribunal held that a specific query had ITA No. 438 of 2018 (O&M) been put by the original AO to the assessee regarding sales and purchases andin response thereto, all details had been furnished by the assessee andtherefore the issue of cash payments in contravention of Section 40A(3) readwith Rule 6DD of the Rules was before the Assessing Officer and thereforeinvocation of Section 148(1) of the Act was hit by the doctrine of change ofOpinion. | 3,The only contention raised before us is that in the originalassessment order no opinion at all was formed and therefore, it was erroneousfor the Commissioner and the Tribunal to held to be a case of change ofopinion. This argument is to be rejected. It is not in dispute that the issue ofcash payments and evidence thereof, was before the Assessing Officer andwrongly he ignored it. The remedy before the revenue was to have challengethat order but the revenue did not do so and proceeded in the manneraforementioned. Once an issue and evidence there of, is clearly before anauthority and the authority ignores it, it cannot later on decide to re-open onthat ground and the specious argument that if there is no opinion there can beno change of opinion, would not apply. 4Dismissed. IAJAY TEWARI]JUDGE JANUARY 28, 2020 sham 1. Whether speaking/ reasoned 2. Whether reportable JIAVNEESH JHINGANJUDGE Yes/NoYes/NoYes/No