- (1.) The appeal is directed against the judgment and order dated 1st April, 2005 passed by the learned Income -tax Appellate Tribunal, "D" Bench pertaining to the assessment year 1991 -92. Aggrieved by the order of the learned Tribunal the assessee has come up in appeal.
(2.) At the time of admission, the following questions were formulated: - i] Whether in view of the fact that the assessment having been reopened after the expiry of four years from the end of the relevant assessment year, in the absence of any finding or belief stated in the recorded reasons that the Assessing Officer had formed any belief that the alleged income if any has escaped assessment on account of any omission or failure on the part of the appellant to disclose fully and truly all material facts, the condition for the exercise of jurisdiction under Sec. 147 of the act is satisfied and whether the purported proceedings reopened under Sec. 147 of the act is illegal, invalid and without jurisdiction? ii] Whether in view of the fact that the petitioner had disclosed in the balance sheet filed along with the return the material facts that no capital outflow being entailed in import of the aircraft and whether in view of the fact that the appellant having disclosed all the material facts at the time of original assessment in pursuance to the notice under Sec. 142(1) of the I.T. Act, there was any omission and/or failure on the part of the appellant to disclose fully and truly all material facts necessary for the assessment and as such the condition precedent for the assumption of jurisdiction under Sec. 147 of the Act has been satisfied? iii] Whether in view of the fact that in the investigation which is purported to have been made by the Investigating Agency under FERA no finding on the basis of any adjudication had been as yet arrived at, the Assessing Officer was entitled under the law to rely upon the reports of the Investigating Agency when there is no finding or conclusion on the basis of such report of the Investigating Agency and as such the material relied upon by the Assessing Officer is admissible for the purpose of reopening the proceeding under Sec. 147 of the IT. Act and whether reliance on such alleged reports of the Investigating Agency which were not even disclosed in full for the purpose of forming any reasonable belief as to whether there had been any omission or failure on the part of the petitioner to disclose fully and truly all material facts and as such the finding of the Tribunal on the said account is illegal, invalid, unreasonable and perverse? iv] Whether the finding of the Tribunal that the aircraft was received by way of a gift was the only explanation offered by the appellant in the course of assessment proceeding is contrary to and inconsistent with the fact that the appellant himself in the course of assessment proceeding had clearly stated that the aircraft was not received by way of a gift but was held on behalf of the foreign collaborator and there was no capital outflow involved in importing it and as such the aforesaid finding of the Tribunal is unreasonable and contrary to the evidences and materials on record and is perverse? v] Whether in view of the fact that the Tribunal has restored the matter to the file of the Assessing Officer for decision afresh on merits, the Tribunal was legally justified in making certain observations casting doubts about the genuineness of the evidence and whether any such observation of the Tribunal is unwarranted and unjustified in law as will interfere with and prejudice the Assessing Officer in coming to its own independent decision? vi] Whether the Tribunal was justified in law in observing that the Learned Representative for the assessee did not dispute the veracity or correctness of the documents and did not challenge its admissibility as evidence, the aforesaid finding and/or observation of the Tribunal is patently incorrect and contrary to the facts as the Learned Representative for the assessee had from the very beginning raised objection regarding the admissibility of the said evidence at the stage of hearing before the Tribunal and has also stated the aforesaid objection in the written submission filed before the Tribunal?
(3.) Mr. Khaitan, learned senior advocate, appearing for the appellant made elaborate submissions on all the questions formulated above. We, however, have not been impressed by the submissions on the point that reopening of the assessment was not justified in law. We, however find some substance in the submission advanced by Mr. Khaitan with respect to question Nos. (v) and (vi).;