The Commissioner of Income Tax Vs. Tbs Publishers and Distributors - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]c.n. ramachandran nair, j.1. the question raised in the appeal filed by the revenue is whether the tribunal was justified in confirming the order of the c.i.t.(appeal) cancelling the reassessment completed under section 147 of the income tax act in the case of the respondent for the year 1996-1997. we have heard senior counsel appearing for the appellant and sri. p. balakrishnan, counsel appearing for the respondent.2. the assessee filed the return on 29.11.1996 disclosing the total income as nil. return of income was processed under section 143(1)(a) and intimation was sent on 20.1.1997. however, on 31.1.1997 itself the assessing officer issued notice under section 148 proposing to reopen the assessment for the reason that the assessing officer was of the belief that taxable income has escaped assessment within the meaning of section 147 of the income tax act. the reason for reopening as recorded in the c.i.t.(appeal)'s order is extracted hereunder:the return of income was filed on 29.11.1996 disclosing total income of rs. nil. the return of income was processed under 143(1)(a) accepting the return of income and disallowing credit for tds as the relevant income was not offered for assessment. according to the certificate of tds filed along with the return of income, the assessee was paid rent amounting to rs. 2,46,180/- from state bank of mysore, calicut branch. this amount has not been included in the total income of the assessee. balance sheet shows sundry creditors at rs. 62,03,601/-. the details have not been furnished. enquiries reveal that the list included non- existent liabilities due to omission to record rebates, commissions, discounts and also the payments. such amounts are assessable as cessation of liability. i have therefore, reason to believe that income chargeable to tax has escaped assessment within the meaning of section 147 of the income-tax act. issue notice under section 148.in the revised assessment even though no rental income was assessed from house property, among other things disallowance of sundry creditors is to the extent of rs. 7,07,008/-. in fact, as against the nil income returned by the assessee, the total tax and interest payable under section 234a and 234b was worked out by the assessing officer at rs. 18,09,870/-.3. the appeal filed before the c.i.t.(appeal) was allowed vacating the revised assessment for the reason that the grounds stated for reopening were non-existent because in the first place, no income from house property was assessed even though claim of tds without disclosing income under this head was the ground for reopening. besides this, the c.i.t.(appeal) held that the assessing officer had no material to hold that liability towards sundry creditors covered non- existent liabilities as well. since the re-assessment was cancelled on this ground, the first appellate authority did not go into the merits of the case. the other grounds raised were against additions made in the reassessment. in second appeal filed by the department, the tribunal confirmed the order of c.i.t. (appeal) against which this appeal is filed.4. senior counsel relied on decision in assistant commissioner of income-tax v. rajesh jhaveri stock brokers p. ltd. reported in : (2007) 291 itr 500 where the supreme court stated that what is required for reopening assessment under section 147 is only the subjective satisfaction of the assessing officer that income chargeable to tax has escaped assessment. this does not necessarily follow that the reason for reopening should by itself lead to assessment of any income. in other words, in the course of reassessment all escaped income could be brought to tax and the assessing officer is not bound to confine to the grounds on which reopening is made. in this case assessee claimed credit based on tds certificate on rent, but without disclosing income under the head 'income from house property'. further, the assessing officer doubted genuineness of claim under sundry creditors because he was of the opinion that non-existent liabilities due to omission to record rebates, commissions, discounts and also the payments are included under the claim of sundry creditors. in fact, it is seen in the reassessment that there was substantial addition of above rs. 7 lakhs under this head in the reassessment. going by the judgment of the supreme court, we do not think the decision of the c.i.t.(appeal) confirmed by the tribunal is tenable or sustainable. even though counsel for the assessee contended that the assessing officer could have issued notice under section 143(2) and made a regular assessment under section 143(3), we do not think such a recourse open to the assessing officer stands in his way of reopening the assessment under section 147, if he has reason to believe that income has escaped assessment. we find that the reasons recorded by the officer are sufficient to justify his belief that income has escaped assessment, no matter whether any addition could be sustained in the assessment with specific reference to the grounds of reopening. we, therefore, allow the appeal by reversing the order of the tribunal and that of the first appellate authority and remand the matter to the first appellate authority for considering the appeal on merits.