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TMI Blog2013 (10) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... cer at Agra was not having jurisdiction over the assessee. Therefore, he should not have recorded the reasons for reopening of assessment and further he did not examine any information supplied by DDIT(Inv.) and that he was having no reasons to believe that income chargeable to tax has escaped assessment and such facts are also not mentioned in the reasons recorded for reopening of assessment. The AO at Mathura did not do anything in the matter and merely followed the reasons recorded by ITO at Agra and that he has initiated the proceedings u/s. 148 against the assessee on borrowed satisfaction of ITO, Agra - ITO, Mathura has also not examined any record of the case or the information received from DDIT(Inv.). The reasons which are not in accordance with law have been recorded at Agra by the ITO, who was not authorized to do so and was not having jurisdiction over the assessee and the Assessing Officer having jurisdiction over the assessee at Mathura did not do so and merely acted on the above borrowed satisfaction - Re-assessment proceedings u/s. 147 of the IT Act is clearly bad in law and against the provisions of law – Decided in favor of Assessee. - ITA No. 58/Agra/2009 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice was issued to explain why the receipt of Rs.5,92,809/- shown as capital receipts may not be taxed. During the discussion, the assessee challenged the proceedings u/s. 147 and subsequently notice u/s. 142(1) on the plea that notice u/s. 148 was without jurisdiction. In view of this position, therefore, a notice u/s. 148 was issued on 13.01.2004 by Income-tax Officer 3(4), Mathura with approval of Additional CIT, Range-3, Mathura and the same was served upon the assessee on the same date. Thereafter notice u/s. 142(1) was issued but the assessee did not file fresh return u/s. 148 and stated that original return filed may be treated as return filed in response to notice u/s. 148 and stated that original return filed may be treated as return filed in response to notice u/s. 148. Thereafter, proceedings were taken up and ultimately, the ITO 3(4), Mathura made the addition of Rs.5,92,809/- on account of unexplained deposits in bank account of assessee for bogus purchase and sale of shares through M/s. R.K. Agarwal Co., New Delhi. 5. The ld. CIT(A) noted in the appellate order that the assessee preferred the appeal against the order u/s. 148/144 passed by the ITO 3(4), Mathur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of assessment and sanction granted by Addl. CIT, Range-I, Agra dated 28.03.2003. The ld. DR submitted that except the reasons recorded and copy of same filed on record, there is no other reason available on record for reopening of assessment. The ld. DR relied upon the orders of the authorities below and submitted that re-assessment proceedings are as per law and additions have correctly been made in the matter. 8. We have considered the rival submissions and the material available on record. The assessee in the paper book filed letter issued by ITO 3(4), Mathura dated 08.12.2003 at page 8 of the paper book, in which same facts have been recorded regarding reopening of assessment by AO at Agra and thereafter transferred the case to him at Mathura. Copy of reasons are filed at page 9 of the paper book, which tally with the reasons supplied by the ld. DR from the record. Copy of the reasons supplied by the ld. DR are reproduced as under : An information has been received from the DDIT(Inv.),Gurgaon vide letter F.No.DDIT(Inv.)/GGN/02-03 dated 12.03.2003 regarding transaction of shares resulting into Long Term Capital Gains that has been found bogus as a result of inquiries mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the Assessing Officer at Mathura because he could not proceed on the basis of reasons recorded at Agra, the AO at Mathura issued fresh notice u/s. 148 on dated 13.01.2004 with the approval of Addl. CIT, Range-3, Mathura and the same was served upon the assessee. The Assessing Officer has nowhere recorded in the assessment order if any fresh reasons have been recorded at Mathura before issuing notice u/s. 148 on dated 13.01.2004. The AO merely recorded in the assessment order that fresh notice u/s. 148 was issued on 13.01.2004 with the approval of additional CIT, Range-3, Mathura, but there is no whisper of recording any fresh reasons at Mathura by the present AO in the assessment order. Even the ld. DR during the course of arguments, when produced assessment records before us, accepted that there is no other reasons recorded by the AO at Mathura. It was, therefore, clearly proved that the AO at Mathura merely acted upon the reasons recorded at Agra, copy of which is placed on record and was also supplied to the assessee (PB-9). In the aforesaid reasons, it is clear that the AO has nowhere recorded the necessary ingredients of section 147 of the IT Act that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98-99 was allowed by the Assessing Officer. The lessee had claimed revenue expenditure for the lease rent paid to the assessee but the Assessing Officer had allowed depreciation on the capital value of the plant and machinery. On noticing this fact, the Assessing Officer of the assessee initiated proceedings under section 147 of the Act and made an addition to the income of the assessee. The Commissioner (Appeals) upheld the addition made by the Assessing Officer for the assessment years 1996-97 and 1997-98 but deleted the addition made by the Assessing Officer for the assessment years 1998-99 and 2001-02. On the finding that that the reassessment proceedings had been initiated on borrowed satisfaction and that the lease agreements being operating leases the assessee was the owner of the leased assets which were leased out to the lessee company for a rent and thereby the assessee was also a user of the assets, the Tribunal held that the assessee was entitled to depreciation under section 32 of the Act. On appeals : Held, (i) that the reassessment proceedings had been initiated only on account of the opinion of the Assessing Officer of the lessee and the Tribunal was right in fixi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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