Yogendrakumar Gupta v. Income Tax Officer

C/SCA/4299/2014 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 4299 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ YOGENDRAKUMAR GUPTA....Petitioner(s) Versus INCOME TAX OFFICER....Respondent(s) ================================================================ Appearance: MR MANISH J SHAH, ADVOCATE for the Petitioner(s) No. 1MRS MAUNA M BHATT, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI Date : 6/05/2014 CAV JUDGMENT (PER : HONOURABLE MS JUSTICE SONIA GOKANI) 1. The present petition has been preferred under Article 226 of the Constitution of India challenging the notice of reopening issued under Article 226 of the Constitution of India challenging the notice of reopening issued under section 148 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') in connection with the assessment year 2006-07 in the following factual background : 1.1The petitioner for the said assessment year submitted a return of income reflecting his total income at Rs.64,65,144/-. A notice under 143(2) of the Act followed by a notice under section 142(1) of the Act were issued on June 21, 2007 and September 19, 2008 respectively. In the said notices, details of unsecured loans received by the petitioner were required to be furnished. Yet another notice under section 143(2) of the Act dated September 19, 2008 had total income at Rs.64,65,144/-. A notice under 143(2) of the Act followed by a notice under section 142(1) of the Act were issued on June 21, 2007 and September 19, 2008 respectively. In the said notices, details of unsecured loans received by the petitioner were required to be furnished. Yet another notice under section 143(2) of the Act dated September 19, 2008 had followed. All the details as directed by the respondent had been furnished, which included the details of unsecured loans vide communication dated November 27, 2008. 1.2 Yet another notice dated December 03, 2008 called for genuineness and creditworthiness of all the parties whose names appeared in the list of unsecured loans and deposits, which were required to be furnished along with complete address and PAN. The petitioner vide communication dated December 15, 2008 provided not only the addresses, PANs and details of the amount with dates, but the confirmation letters as well. After the entire exercise, scrutiny assessment under section 143(3) was completed on December 22, 2008 and the Assessing Officer made disallowances under section 14A and 94(7) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'). The petitioner aggrieved by such order challenged the same before the CIT (Appeals) and the same is pending before the CIT (Appeals). 1.3 In the meantime, the impugned notice under section 148 of the Act dated March 28, 2013 came to be issued, beyond the period of four years from the end of relevant assessment year complete address and PAN. The petitioner vide communication dated December 15, 2008 provided not only the addresses, PANs and details of the amount with dates, but the confirmation letters as well. After the entire exercise, scrutiny assessment under section 143(3) was completed on December 22, 2008 and the Assessing Officer made disallowances under section 14A and 94(7) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'). The petitioner aggrieved by such order challenged the same before the CIT (Appeals) and the same is pending before the CIT (Appeals). 1.3 In the meantime, the impugned notice under section 148 of the Act dated March 28, 2013 came to be issued, beyond the period of four years from the end of relevant assessment year on the ground that the Assessing Officer had a reason to believe that the income had escaped the assessment, directing the petitioner to file the return within 30 days from the date of receipt of the notice since he proposed to assess the escaped income. 1.4A request was made vide communication dated April 09, 2013 seeking a copy of the reasons April 09, 2013 seeking a copy of the reasons recorded. However, it was insisted on the part of the respondent that the petitioner needs to file his return in response to the notice under section 148 of the Act and then only the reasons recorded under section 148(2) of the Act could be provided. Accordingly, the petitioner declared that the original return of income filed by him on December 31, 2006 be considered as return filed in response to such a notice. A notice under section 143(2) of the Act came to be issued on January 17, 2014 and the reasons were also furnished on February 18, 2014, which read as under : “As per information contained in the report of the DCIT, C.C., XXVIII, Kolkata forwarded vide letter No.CIT(C)-Kol./CBI/12-13, dated 04/03/2013, it is noticed that assessee company has obtained accommodation entry in the form of Loans and Advances from Basant Marketing Pvt. Ltd. Kolkata. Theassesseehastaken accommodation entry of Rs.8,71,00,000/-, in the form of Loans and advances from Basant Marketing Pvt. Ltd. Kolkata. Therefore I have reason to believe that an amount of Rs.8,71,00,000/- has escaped the assessment within the meaning of section 147 of the IT Act.” 1.5 Yet another correspondence dated March 05, 2014 for the post notice period deserves reproduction at this stage, which is in the form of a show cause notice, which reads as under : “During the year under consideration loans and advances of Rs.8,71,00,000/- has been received by the assessee from M/S Basant Marketing Pvt. Ltd. As per the information received from DCIT (Central) XXVIII, Kolkata dated 12.02.2013 M/s Basant Marketing (P) Ltd has provided accommodation entries to various beneficiaries during the year and the assessee is one of them. Further it has been stated that M/s Basant Marketing (P) Ltd. is a dummy company of Arun Dalmiya on the basis of substantial material found during the search by CBI, Mumbai. Therefore you are required to show cause as to why the amount of Rs.8,71,00,000/- received from M/s Basant Marketing (P) Ltd. during the year should not be treated as cash credit u/s 68 of the Income Tax Act, 1961.” 1.6 The petitioner filed reply to the same by stating that he intended to file writ petition stating that he intended to file writ petition against the invalid notice. 1.7The petitioner vide its letter dated March 13, 2014 requested the respondent to supply a 13, 2014 requested the respondent to supply a copy of the letter received from the DCIT, Kolkata, on the basis of which she had formed the basis of substantial material found during the search by CBI, Mumbai. Therefore you are required to show cause as to why the amount of Rs.8,71,00,000/- received from M/s Basant Marketing (P) Ltd. during the year should not be treated as cash credit u/s 68 of the Income Tax Act, 1961.” 1.6 The petitioner filed reply to the same by stating that he intended to file writ petition stating that he intended to file writ petition against the invalid notice. 1.7The petitioner vide its letter dated March 13, 2014 requested the respondent to supply a 13, 2014 requested the respondent to supply a copy of the letter received from the DCIT, Kolkata, on the basis of which she had formed the reason to believe. However, soon thereafter on March 14, 2014, the objections have been filed to the reasons recorded essentially challenging such notice on the ground that there was nothing to indicate that the petitioner had not fully and truly disclosed all the material facts necessary for assessment. It was the say of the petitioner that the original assessment got completed after scrutiny, where alleging the genuineness of the transactions, no additions have been made in respect of unsecured loans. It was also the say of the petitioner that the confirmation letters furnished pursuant to the notices issued along with substantiating documents also take away the very basis of such notice. The sworn affidavit of the Director of Basant Marketing Pvt. Ltd. also specifically stated that all the transactions of loans given to the petitioner were genuine and given through banking channels. We notice that there was no statement of CIT (Appeals) that the loans given to Basant Marketing Pvt. Ltd. are true and all loans given by Basant Marketing Pvt. Ltd. to the present petitioner are genuine. the present petitioner are genuine. 1.8 It is averred by the petitioner that despite such eloquent objections backed by documentary evidence, the objections were disposed of by holding that the same were not tenable and, therefore, the present petition.disposed of by holding that the same were not tenable and, therefore, the present petition. 2. On issuance of notice, the respondent appeared and filed an affidavit-in-reply inter alia urging that the alternative efficacious remedy is available by way of an appeal to the CIT (Appeals) and thereafter, to the Tribunal and, therefore, the present petition may not be entertained. 2.1On merits, the fact is not controverted that after scrutiny, the return of the petitioner was finalised on December 22, 2008, where disallowances were made under section 14A and 94(7) of the Act.was finalised on December 22, 2008, where disallowances were made under section 14A and 94(7) of the Act. C/SCA/4299/2014 CAV JUDGMENT 2.2It is, however, contended that on receipt of information by way of report of the DCIT information by way of report of the DCIT (Central), XXVIII, Kolkata, on having found that the assessee had taken accommodation entries of Rs.8.71 crore in the form of loans and advances from Basant Marketing Pvt. Ltd., which was a dummy company engaged in money laundering business and, therefore, the Assessing Officer held that the income of the assessee chargeable to tax had escaped the assessment. C/SCA/4299/2014 CAV JUDGMENT 2.2It is, however, contended that on receipt of information by way of report of the DCIT information by way of report of the DCIT (Central), XXVIII, Kolkata, on having found that the assessee had taken accommodation entries of Rs.8.71 crore in the form of loans and advances from Basant Marketing Pvt. Ltd., which was a dummy company engaged in money laundering business and, therefore, the Assessing Officer held that the income of the assessee chargeable to tax had escaped the assessment. 2.3It is the say of the respondent that the Assessing Officer was in receipt of the information contained in the report of the DCIT, Kolkata dated March 04, 2014, which was in the nature of the tangible material and on the basis of such information, after due application of mind, the Assessing Officer recorded reasons for reopening the assessment. Assessing Officer was in receipt of the information contained in the report of the DCIT, Kolkata dated March 04, 2014, which was in the nature of the tangible material and on the basis of such information, after due application of mind, the Assessing Officer recorded reasons for reopening the assessment. It is alleged that there is an omission or failure on the part of the assessee to disclose fully and truly all material facts, which were necessary for the assessment. On definite and reliable information, the Assessing Officer has formed an opinion and reasonable belief. However, no response was made to the subsequent show cause notice dated March 05, 2014. Accordingly, it is urged that the petition may not be entertained. 3. The learned counsel Shri J.P. Shah appearing with the learned counsel Mr.M.J. Shah for the petitioner, fervently argued that all the facts have been fully inquired at the time of original assessment as the same was scrutiny assessment. All receipts admittedly are by cheques. Not only the names of the parties, but their PAN and other details confirmed the genuineness of the transactions. In absence of any omission or failure on the part of the petitioner to furnish any material particulars, the very notice must fail. He further urged that the information passed over to the Assessing Officer is in pre-inquiry stage. There was no case of accommodation entry at all. Therefore, it was incumbent upon the Assessing Officer to make preliminary inquiry before issuance of the notice. The entire issue has remained in realm of suspicion. Since no authority has gone beyond the reason to suspect, the Court must intervene. He urged that the object of the Apex Court in directing the Revenue Authority to provide the reasons recorded and to dispose of the same cannot be perceived as an empty formality. Relying on the decision of the Supreme Court in the case of GKN Driveshafts (India) Ltd vs. Income tax officer and others reported in 259 ITR 19 (SC), he further urged that the availability of the efficacious remedy is no ground in the instant case where there is nothing to indicate that the petitioner did not disclose fully and truly all material facts and, therefore, the very assumption of jurisdiction on the part of the Assessing Officer is erroneous. The petitioner is not required to undergo the entire ordeal. He has sought to rely on the following decisions : (1)CIT v. Kamdhenu Steel & Alloys Ltd. & ors., reported in (2012) 206 TAXMAN 254 (Delhi).ors., reported in (2012) 206 TAXMAN 254 (Delhi). (2)Patel Alloy Steel (P) Ltd. v. Assistant Commissioner of Income-tax (OSD) Circle-5, Ahmedabad,reportedin(2013)35 taxmann.com 353 (Gujarat).Commissioner of Income-tax (OSD) Circle-5, Ahmedabad,reportedin(2013)35 taxmann.com 353 (Gujarat). 35 (1)CIT v. Kamdhenu Steel & Alloys Ltd. & ors., reported in (2012) 206 TAXMAN 254 (Delhi).ors., reported in (2012) 206 TAXMAN 254 (Delhi). (2)Patel Alloy Steel (P) Ltd. v. Assistant Commissioner of Income-tax (OSD) Circle-5, Ahmedabad,reportedin(2013)35 taxmann.com 353 (Gujarat).Commissioner of Income-tax (OSD) Circle-5, Ahmedabad,reportedin(2013)35 taxmann.com 353 (Gujarat). 35 (3)Commissioner of Income-tax v. Shardaben K. Modi, reported in (2013) 35 taxmann.com 264 (Gujarat).K. Modi, reported in (2013) 35 taxmann.com 264 (Gujarat). 4. Mr.Manish M. Bhatt, learned Senior Counsel appearing with the learned counsel Mrs.Mauna Bhatt for the Revenue, submitted that this is a case of the petitioner not furnishing truly and fully all material facts and, therefore, even if the original assessment has been concluded on scrutiny, the notice of reopening cannot be hampered at this stage. He further urged that on the basis of the information contained in communication of the DCIT, Kolkata, indicating that the petitioner obtained accommodation entry in the form of loans and advances from Basant Marketing Pvt. Ltd., Kolkata, the Assessing C/SCA/4299/2014 CAV JUDGMENT Officer on having reason to believe that the income chargeable to tax has escaped the assessment, the Court need not interfere. Reliance is placed on the following decisions : (1)Dishman Pharmaceuticals and Chemicals Ltd. v. Deputy Commissioner of Income-tax (OSD), Ahmedabad, reported in (2012) 346 ITR 228 (Guj.).Ltd. v. Deputy Commissioner of Income-tax (OSD), Ahmedabad, reported in (2012) 346 ITR 228 (Guj.). (2)Phul Chand Bajrang Lal and another v. Income-tax Officer and another, reported in 203 ITR 456.Income-tax Officer and another, reported in 203 ITR 456. 5. We have, thus, heard both the sides and also undertaken the exercise of closely examining the material on record. At this stage, it is needed to be noted that we deemed it necessary to call for the original file with regard to the satisfaction of the Assessing Officer in forming the belief that the income chargeable to tax escaped the assessment, reference to which shall be made at an appropriate stage in this judgment. 6. This being a challenge to the reopening notice issued under section 148 of the Act, having been issued on completion of period of four years from the end of relevant assessment year, the law on the subject requires reproduction at this stage. 7. Section 147(1) of the Act reads as under : “Income Escaping Assessment. 147(a) If the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return under S. 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in Cl. (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Ss. 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be for the assessment year concerned (hereafter in Ss. 148 to 153 referred to as the relevant assessment year).” (b) notwithstanding that there has been no omission or failure as mentioned in Cl. (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Ss. 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be for the assessment year concerned (hereafter in Ss. 148 to 153 referred to as the relevant assessment year).” 8. Section 147, thus, permits the reopening of the assessment to the Assessing Officer on his forming a belief that the income chargeable to tax has escaped the assessment. For the Assessing Officer to be authorised to reopen any assessment beyond the period of four years, he could so do it if the assessee fails to make a return under section 139 of the Act or in respect of a notice under sub-section (1) of section 142 or he fails to disclose fully and truly all the material facts necessary for such assessment. We are concerned, in the present case, with the reopening of the assessment beyond the period of four years from the end of relevant assessment year, where it is averred that a notice under section 148 of the Act was the result of the assessee not having disclosed fully and truly all the material facts. In the original assessment, if the assessment is framed after the scrutiny under section 143(3) of the Act, the reassessment would be permissible under the law on completion of four years of period from the end of relevant assessment year, for any income chargeable to tax having escaped the assessment only on account of failure on the part of the assessee to disclose fully and truly all the material facts necessary for assessment. Of course, the satisfaction of the Assessing Officer is a must that such income had escaped the assessment by reason of any failure on the part of the assessee, otherwise the assumption of the jurisdiction under section 147 of the Act would be invalid. The Apex Court in the case of Fulchand Bajranglal (supra) was considering the question of reassessment beyond the period of four years in the case of an assessee firm which had parted such an amount from Kolkata based company. The assessee also had filed confirmatory letters from the said company in support of its loan transactions. Interest paid to the Kolkata company by the assessee was permitted by the Assessing Officer for nearly five years. However, on the basis of some C/SCA/4299/2014 CAV JUDGMENT communication received from the Income-tax Officer based on Kolkata, the genuineness of the loan transactions had been questioned. The Managing Director of the Kolkata company admitted that the company was a mere name lender and no amount had been advanced during last three assessment years. Such transactions being bogus on the basis of these information, reassessment proceedings were initiated. When such notice was challenged before the Apex Court, it held that this was not a case of the Income-tax Officer drawing any fresh inference which she could have framed at the time of original assessment on the basis of the material placed before her by the assessee relating to the loan by the Kolkata company. It was the case of acquiring fresh information specific in nature and reliable, relating to the concluded assessment, which went to falsify the statement made by the assessee at the time of original assessment and, therefore, he would be permitted under the law to draw fresh inference from such facts and material. The Court also went to an extent of saying that there are two distinct and different situations where the transaction itself on the basis of subsequent information is found to be bogus transaction and in such event, mere disclosure of the transaction cannot be said to be true and full disclosure and the Income-tax Officer would have jurisdiction to reopen the concluded assessment. The subsequent information on the basis of which the Income-tax Officer acquired the reason to believe that the income chargeable to tax had escaped on account of omission on the part of the assessee to fully and truly disclose primary facts when was reliable, specific and relevant and not vague or unspecific, the reopening was permitted. It would be apt to quote some observations of the Apex Court in the case of Phul Chand Bajrang Lal (supra), which read as under : “... one has to look to the purpose and intent of the provisions. One of the purposes of Section 147 apperas to be to ensure that a party cannot get away by willfully making a false or untrue statement at the time of original assessment and when that falsity comes to notice to turn around and say ‘you accepted my lie, now your hands are tied and you can do nothing’. It would, be travesty of justice to allow the assessee that latitude.” 9. In the case of Dishman Pharmaceuticals and Chemicals Ltd. (supra), this Court was dealing with reopening of the assessment beyond the period of four years from the end of relevant assessment year, where this Court has upheld the reassessment proceedings by holding and observing that the Assessing Officer must have reason to believe that the income chargeable to tax had escaped the assessment and that the same occasioned on account of either failure on the part of the assessee to make return of his income or disclose fully and truly all the material facts. Both these conditions are conditions precedent and must be satisfied simultaneously before the Income-tax Officer can assume jurisdiction to reopen the assessment at the end of relevant assessment year. If the reasons recorded do not disclose the satisfaction of these two conditions, reopening notice must fail. However, it was further held that there is no set format in which such reasons must be recorded. It is not the language but the contents that assume importance. It also further states that such reasons must emerge from the reasons recorded and cannot be supplied through an affidavit filed before the Court. 10.What amounts to subjective satisfaction on the part of the Assessing Officer when he holds the reason to believe, has been discussed at length in various judicial pronouncements. 10.1 In the case ofCentral Provinces Manganese Ore Co. Ltd. v. Income-tax Officer, Nagpur, reported in 191 ITR 662, the assessee was a non-resident company, whose head office was in London and one office was in India. The proceedings of reassessment under section 148 had been initiated. The customs authority came to know that the assessee had declared very low prices in respect of all the consignments of manganese ore exported by it. On due investigation, it found that the assessee systematically under-invoiced the same. In the challenge to reopening assessment, the Supreme Court sustained such notice on the ground that the appellant had not produced their books of accounts kept at London or the original contracts of sale entered into with the buyers and no reasons were given for supply of manganese ore at a rate lower than the market rate and, therefore, the charge of under- investigation, it found that the assessee systematically under-invoiced the same. In the challenge to reopening assessment, the Supreme Court sustained such notice on the ground that the appellant had not produced their books of accounts kept at London or the original contracts of sale entered into with the buyers and no reasons were given for supply of manganese ore at a rate lower than the market rate and, therefore, the charge of under- invoiced was found per se to have been satisfied leading to satisfying the second condition under section 147(a) of the Act that there was failure on the part of the assessee to disclose fully and truly all the material facts at the time of original assessment.satisfied leading to satisfying the second condition under section 147(a) of the Act that there was failure on the part of the assessee to disclose fully and truly all the material facts at the time of original assessment. 10.2 The Apex Court in the case of Assistant Commissioner of Income-tax v. Rajesh Jhaveri Stock Brokers P. Ltd., reported in (2007) 291 ITR 500 (SC), has held that at the stage of issuance of notice of reopening, the Assessing Officer must have a reason to believe and not the established fact of escapement of income in the following manner : “The expression “reason to believe” in section 147 would mean cause or justification. If the Assessing Officer has cause or If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. What is required is “reason to believe” but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief is within the realm of subjective satisfaction of the Assessing Officer.” 10.3 In the case of Raymond Woolen Mills Ltd. v. Income-tax Officer and others, reported in 236 ITR 34, the Court held that in determining whethercommencementofreassessment 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 such stage. 10.4 Reference also needs to be made of decision of Andhra Pradesh High Court rendered in the case of GVK Gautami Power Ltd. v. Assistant Commissioner of Income-tax (OSD) and another, reported in 336 ITR 451, wherein the Andhra Pradesh High Court has held and observed as under : “17. All that is necessary to give special jurisdiction is that the ITO had, when he assumed jurisdiction, some prima facie grounds for believing that there had been some non-disclosure of material facts. Whether these grounds are adequate or not, for arriving at the conclusion that there was non-disclosure of material facts, would not be open for the court's investigation. (Calcutta Discount Co. Ltd.1). At the stage of examining the validity of the notice under Section 148/147, the enquiry is only to see whether there are reasonable grounds for the ITO to believe, and not whether the omission/failure and the escapement of income is established. It is necessary to keep this distinction in mind. (Sri Krishna Pvt. Ltd. [1996] 221 ITR 538 (SC)).” “17. All that is necessary to give special jurisdiction is that the ITO had, when he assumed jurisdiction, some prima facie grounds for believing that there had been some non-disclosure of material facts. Whether these grounds are adequate or not, for arriving at the conclusion that there was non-disclosure of material facts, would not be open for the court's investigation. (Calcutta Discount Co. Ltd.1). At the stage of examining the validity of the notice under Section 148/147, the enquiry is only to see whether there are reasonable grounds for the ITO to believe, and not whether the omission/failure and the escapement of income is established. It is necessary to keep this distinction in mind. (Sri Krishna Pvt. Ltd. [1996] 221 ITR 538 (SC)).” 10.5 Delhi High Court in the case of Acorus Unitech Wireless (P.) Ltd. v. Assistant Commissioner of Income-tax, reported in (2014) 43 taxmann.com 62 (Delhi), was examining the reassessment notices issued and the proceedings conducted under section 148 of the Act. The writ petitioner, a company incorporated under the Companies Act, was served with a notice of reopening. It requested for a copy of the reasons which led to the reopening. Reasons had been supplied after a gap of about nine months. It was by way of a letter that the reasons to believe that the income chargeable to tax had escaped assessment, were provided. A request was made by the company to provide a copy of C/SCA/4299/2014 CAV JUDGMENT the report prepared by the DIT (Inv.) in respect of the 2G spectrum cases. However, the Revenue contended that the material relied on by the Revenue in respect of 2G spectrum is confidential and cannot be disclosed and the Revenue asked the petitioner to file its objection to the reasons recorded and supplied reasons to the petitioner by way of a communication. In such a challenge, the High Court upheld the claim of the Revenue for privilege/ confidentiality of the 2G spectrum by holding that the law requires that the information upon which the Assessing Officer records his satisfaction that income has escaped assessment, if is communicated to the assessee, without the disclosure of any specific documents, the proceedings initiated under section 147 would not be rendered void. In the words of Delhi High Court : “22. In this context, the Court will now turn to the question of whether the disclosure of the 2G Spectrum Report is mandatory, and whether the failure to supply it is fatal to the present proceedings. The law only requires that the information or material on which the AO records his or her satisfaction is communicated to the asseseee, without mandating the disclosure of any specific document. While the 2G Spectrum Report has not been supplied in this case on grounds of confidentiality, the reasons recorded have been communicated and do provide – independent of the 2G Report – details of the new and tangible information that support the AO's opinion. These facts are capable of justifying the satisfaction recorded on their own terms, as discussed above. In this context, there is no legal proposition that mandates the disclosure of any additional document. This is not the say that the AO may in all cases refuse to disclose documents relied upon by him on account of confidentiality, but rather, that fact must be judged on the basis of whether other tangible and specific information is available so as to justify the conclusion irrespective of the contents of the document sought to be kept confidential. In cases such as the present, however, where the information and facts communicated by the AO are themselves in accordance with the minimum requirement under Section 147/148, the petitioner cannot compel the disclosure of other documents that the assessee may have also relied upon.” 10.6 Delhi High Court in the case of Kamdhenu Steel and Alloys Ltd. (supra), was dealing with the case of additions made by the Assessing Officer under section 68 of the Act on account of unexplained share applicable money, where it has taken into account the decision rendered by the very Bench in the case of CIT v. Oasis Hospitalities (P) Ltd., reported in (2011) 333 ITR 119 (Del.), wherein it is held that the initial burden of proving the genuineness is upon the assessee, however, once he proves the identity of credits/share applications by either furnishing PAN or copies of the bank accounts and shows the genuineness of the transaction by showing money in the banks, is by account payee cheques or draft, etc. then the onus to prove the same would shift to the Revenue; and then the question which assumes importance at this stage is to what the Revenue is supposed to do to dislodge the initial burden discharged by the assessee. In a matter before the Delhi High Court, registered letters written to the Company returned undelivered and the Assessing Officer believed that these companies were not existing at the given address. Thereafter, no attempt was made to found out from the office of the Registrar of Companies the address of those companies from where the registered letters were received back undelivered. No effort was made to examine as to whether those companies were filing IT return and if yes, then what kind of returns were filed. From the bank statement filed by the assessee, the Assessing Officer could have found out the addresses of the applicant-companies in the bank, who opened the bank accounts and their signatories. Such kind of inquiries were absent. The Court held that mere failure on the part of the creditors to respond to the department's notice could never be a basis to conclude that the assessee had undisclosed income and initiate proceedings under section 68 of the Act on the ground that the Assessing Officer failed to carry his suspicion to logical conclusion by further investigation and more steps could have been taken by the Revenue in order to find out causal connection between the cash deposited in the bank accounts of the applicant companies and the assessee, the Court held that very important link was missing and, therefore, the additions were deleted. We must notice at this stage that the assessee had approached the High Court being aggrieved by the additions made by the Assessing Officer after their having failed before the Tribunal by way of appeals and, therefore, the Court noticed absence of any efforts on the part of the Assessing Officer to establish not only link but also having wrongly concluded in absence of any sufficiency of material that the transactions were bogus due to non-existence of the company. This Court is dealing with the case of reopening of the assessment at the stage where the objections of the assessee have been disposed of and the Assessing Officer had formed the belief of income chargeable to tax having escaped the assessment on the basis of material made available by DCIT, Kolkata, on investigation. Assessing Officer had formed the belief of income chargeable to tax having escaped the assessment on the basis of material made available by DCIT, Kolkata, on investigation. 10.7 This Court in the case of Patel Alloy Steel (P.) Ltd. (supra) was dealing with the notice issued beyond a period of four years from the end of relevant assessment year, where also the question was with regard to failure on the part of the assessee to disclose fully and truly all the material facts. The Court quashed the notice on the ground that there was no allegation on the part of the Revenue that there was any failure on the part of the assessee to disclose fully and truly all the material facts. The Assessing Officer noted that the assessee had paid interest to IDBI. The copy of the ledger account of interest paid was also with the Assessing Officer and these details of borrowings of interest were part of the assessment proceedings. The Court noticed that on verification of records, the Assessing Officer had based his reasons, which were the part of original assessment. In absence of anything to indicate that there was failure on the part of the assessee to disclose fully and truly all the material facts, such notice was quashed. 10.8 The same was the case in the case of Shardaben K. Modi (supra). There was no independent material and the statement recorded of the some of the assessee, was made the basis of reopening. The Court held that in absence of any evidentiary value of the statement recorded under section 133A of the Act, use of such statement cannot be permitted without any corroborative evidence and the only piece of document was such statement. Accordingly, the notice issued under section 148 of the Act was not permitted to be proceeded. 11.At this stage, we may record that this Court had an occasion to deal with identical question, which culminated into the judgment rendered on had an occasion to deal with identical question, which culminated into the judgment rendered on March 25, 2014 in the case of Lalita Ashwin Jain v. Income-tax Officer while dealing with Special Civil Application Nos.1626 and 1627 of 2014. Various judicial pronouncements on the very issue were regarded and, therefore, it would be apt to borrow the relevant aspects from the said judgment without once again discussing the very law : “11.2 In case of Phoolchand Bajrang Limited v. I.T.O [Supra], the Apex Court was dealing with a case of reassessment. In the original assessment, the assessee firm claimed that it had borrowed certain amount from a Calcutta based company. The I.T.O directed the assessee to file a copy of account of the said Calcutta Company to support the loan transaction and in reply thereto, assessee produced a confirmatory letter from the said company confirming payment of loan to the assessee. For nearly five years ie., A.Y 199394 to 196869, such deduction of interest, as claimed by the assessee having been paid to the Calcutta company, continued to be allowed by the I.T.O. Later on, I.T.O entertained some doubtsaboutgenuinenessofloan transaction, and therefore, a communication C/SCA/4299/2014 CAV JUDGMENT was sent to I.T.O stationed at Calcutta. It was realized that the Managing Director of the said Calcutta company had confessed that he was only a namelender and had not advanced any loan to any party during the three assessment years. Thus, these transactions were found to be bogus on the basis of subsequent information received. In light of these facts, the Apex Court held and observed thus, assessee having been paid to the Calcutta company, continued to be allowed by the I.T.O. Later on, I.T.O entertained some doubtsaboutgenuinenessofloan transaction, and therefore, a communication C/SCA/4299/2014 CAV JUDGMENT was sent to I.T.O stationed at Calcutta. It was realized that the Managing Director of the said Calcutta company had confessed that he was only a namelender and had not advanced any loan to any party during the three assessment years. Thus, these transactions were found to be bogus on the basis of subsequent information received. In light of these facts, the Apex Court held and observed thus, “15. In the present case, as already noticed, the I.T.O. Azamgarh, subsequent to completion of the original assessment proceedings, on making an enquiry from the jurisdictional I.T.O. at Calcutta, learnt that the Calcutta Company from whom the assessee claimed to have borrowed the loan of Rs. 50,000 in cash, had not really lent any money but only its name, to cover up a bogus transaction and after recording this satisfaction as required by the provisions of Section 147 of the Act proposed to reopen the assessment proceedings. The present is, thus, not a case where the Income Tax Officer sought to draw any fresh inference, which could have been raised at the time of original assessment on the basis of the material placed before him by the assessee relating to the loan from the Calcutta Company and which he failed to draw at that time. Acquiring fresh information, specific in nature and reliable in character, relating to the concluded assessment which goes to expose the falsity of the statement made by the assessee at the time of original assessment is different from drawing a fresh inference from the some facts and material which was available which the I.T.O. at the time of original assessment proceedings. The two situations are distinct and different. Thus, where the transaction itself on the basis of subsequent information, is found to be a bogus transaction, the mere disclosure of that transaction at the time of original assessment proceedings, cannot be said to be disclosure of the "true" and "full" facts in the case and the I.T.O. would have the jurisdiction to reopen the concluded assessment in such a case. It is correct jurisdiction to reopen the concluded that the assessing authority could have deferred the completion of the original assessment proceedings for further enquiry and investigation into the genuineness to the loan transaction but in our opinion his failure to do so and complete the original assessment proceedings would not take away his jurisdiction to act under Section 147 of the Act, on receipt of the information subsequently. The subsequent information on the basis of which the I.T.O. acquired reasons to believe that income chargeable to tax had escaped assessment on account of the omission of the assessee to make a full and true disclosure of the primary facts was relevant, reliable and specific. It was not at all vague or nonspecific. Xx xx 19.Again, in A.LA. Firm v. CIT, 189 (1991) ITR 285, a three Judges bench of this Court, to which one of us (S.C. Agrawal, J.,) was a party, after an elaborate discussion of the subject opined that the jurisdiction of the Income Tax Officer to reassess income arises if he has in consequence of specific and relevant information coming into his possession subsequent to the previous concluded assessment, reason to believe, that income chargeable to tax and had escaped assessment. It was held that even if the information be such that it could have been obtained by the I.T.O. during the previousassessmentproceedingsby conducting an investigation or an enquiry but was not in fact so obtained, it would not affect the jurisdiction of the Income Xx xx 19.Again, in A.LA. Firm v. CIT, 189 (1991) ITR 285, a three Judges bench of this Court, to which one of us (S.C