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TMI Blog2014 (8) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... reopened on a mere relook of the matter already available on record - thus, the reopening of assessment by the AO u/s 147 was not valid - the notice issued u/s 148 beyond the period of four years from the end of the relevant assessment year is set aside – Decided in favour of Assessee. - ITA No. 3328/Del/2013 - - - Dated:- 14-8-2014 - Shri G. D. Agrawal And Shri H. S. Sidh,JJ. For the Appellant : Shri Salil Agarwal, Advocate and Shri Shailesh Gupta, CA. For the Respondent : Shri Sunil Kumar Sharma, DR. ORDER Per G. D. Agrawal, VP : This appeal by the assessee is directed against the order of learned CIT(A)-19, New Delhi dated 26th March, 2013 for the AY 2004- 05. 2. Ground No.1 of the assessee s appeal is of general nature and needs no separate adjudication. 3. Ground No.2, 3 4 of the assessee s appeal read as under:- 2. That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in sustaining the initiation of proceedings under section 147 of the Act and, further completion of assessment under section 143(3)/147 of the Act without satisfying the statutory pre-conditions for initiation of the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year and original assessment was completed under Section 143(3). Therefore, proviso to Section 147 would be applicable. As per the proviso, unless there is failure on the part of the assessee to disclose fully and truly all material facts, the assessment cannot be reopened. He referred to the reasons recorded which is at page 67 of the assessee s paper book and pointed out that in the reasons recorded, the Assessing Officer himself has mentioned It is observed from record . Thus, whatever reasons have been recorded, the same have been recorded on the basis of material available on record. No further material or evidence has come to the knowledge of the Revenue after the completion of original assessment. All the facts were already on record at the time of original assessment. He referred to page 5 of the assessee s paper book which is the questionnaire dated 17.5.2006 issued during the course of original assessment proceedings. Vide point No.4, the Assessing Officer asked the assessee to submit the details and evidence of investment made in moveable and immoveable properties. At page 8, there is assessee s reply in which, in reply to query No.4, the assessee has disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not before the Assessing Officer. He referred to the letter placed at page 30 of the assessee s paper book and stated that a copy of the letter with the Department is not the same which the assessee placed in the paper book. He further submitted that there is also contradiction in the explanation given about the source of investment in such shares. At one place, the assessee claimed to have made the payment by cheque and at other place, it claimed to have made the payment through a third party. He further submitted that the disclosure made by the assessee cannot be said to be a full and proper disclosure because the source of investment was not fully and truly disclosed. Therefore, the information cannot be said to be an information furnished in true sense. He also stated that if some information is embedded somewhere which the Assessing Officer could have with due diligence discovered shall not be considered as full and true disclosure by the assessee. The assessee does not maintain books of account. He further submitted that the assessment order passed under Section 143(3) is a cryptic order just in few lines and therefore, no opinion was expressed by the Assessing Officer p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,66,23,750/- in M/s Isher Dass Sahni and Bros. Pvt.Ltd. But the accounts of the assessee did not reflect this investment and therefore had to be added in the income of assessee as unexplained investment u/s 69 however, the above point was not taken in consideration while framing the assessment. 2. Recommendation In view of the above facts, I have reason to believe that the income of the assessee, Sh. Narain Dass Taneja has escaped assessment within the meaning of section 147 of the I.T. Act 1961 to the tune of ₹ 1,66,23,750/- for assessment year 2004-05 by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. 8. From the above, it is evident that the Assessing Officer himself has mentioned It was observed from the records that the assessee has invested as share capital a sum of ₹ 1,66,23,750/- in M/s Isher Dass Sahni and Bros. Pvt.Ltd. But the accounts of the assessee did not reflect this investment . From the above observation, it is evident that the information is available on record. The Assessing Officer himself has mentioned that the information about the investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed the factum of investment in shares amounting to ₹ 1,66,23,750/-. In the reasons recorded, the Assessing Officer has also observed that from the record, it is observed that the assessee has invested as share capital a sum of ₹ 1,66,23,750/- in M/s Isher Dass Sahni and Bros. Pvt.Ltd. Thus, admittedly, the assessee has disclosed the fact of investment in shares of M/s Isher Dass Sahni and Bros. Pvt.Ltd. amounting to ₹ 1,66,23,750/-. As per assessee, it has given satisfactory explanation with regard to source of investment in such shares. As per learned DR, the assessee has not satisfactorily explained the source of investment in such shares. As per learned DR, at some place, the assessee has stated that the investment is made by cheque and at some place, it has stated that the investment is made by the third party. It was clarified by the learned counsel that part of the investment which is made directly by the assessee is by cheque and some part is paid by the third party. On these facts, the decision of Hon ble Apex Court in the case of ACIT and Others Vs. ICICI Securities Primary Dealership Ltd. [2012] 348 ITR 299 (SC) would be squarely applicable. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the source of investment in shares. Thereafter, the Assessing Officer completed the assessment under Section 143(3). Admittedly, nothing new has come to the notice of the Revenue but the assessment is being sought to be reopened on a mere relook of the matter already available on record. Therefore, the above decision of Hon ble Apex Court would be squarely applicable to the case of the assessee. That the Full Bench of Hon'ble Jurisdictional High Court has also taken the similar view in the case of CIT Vs. Usha International Ltd. [2012] 348 ITR 485 (Delhi) and held :- Reassessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereafter the Assessing Officer does not make any addition in the assessment order. In such situations it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion. The reassessment will be invalid because the Assessing Officer had formed an opinion in the original assessment, though he had not recorded his reasons. 12. The facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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