9911796707
TMI Blog2014 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... that the income chargeable to tax for AY 2003-04 has escaped assessment - the AO issued notice u/s 148 of the Act without application of mind to the information received from the Director of Investigation, New Delhi and the AO has not made any addition in this regard in the reassessment order but the addition has been made on account of unsecured loan which was not mentioned in the reasons recorded – revenue has not disputed the fact that the detail of donors was submitted before the AO during original assessment proceedings - the AO has his own jurisdiction without any basis which was not valid and bad in law, hence, notice u/s 148 of the Act and all subsequent proceedings are not sustainable and the notice u/s 148 is set aside – Decided in favour of assesse. X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order. Ground no.4 & 9 4. Ld. AR submitted that the CIT(A) misunderstood the facts of the case and further erred in confirming the additions made by the AO by further misunderstanding and misinterpreting the remand report and ignoring the rejoinder of the assessee. Ld. AR vehemently contended that the CIT(A) has grossly erred in not appreciating the contention of the assessee that the AO has failed to apply his mind before issuing notice u/s 147/148 of the Act and not disposing of the objections of the assessee against the initiation of the proceedings u/s 147/148 of the Act. Ld. AR further contended that the CIT(A) also ignored the main contention of the assessee that neither the statement of the party on which basis action u/s 147 and 148 was initiated nor the copies of the other documents relied by the AO were made available to the assessee and no opportunity was provided to the assessee to cross-examine the person making the statement as relied by the AO to initiate proceedings u/s 147 and 148 of the Act. Ld. AR also submitted that the CIT(A) was not justified in supporting the action of the AO of not supplying the assessee the statement/documents requested during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the assessee from undisclosed sources. I have, therefore, reason to believe that income of ₹ 16,61,000/- chargeable to tax for the AY 2003-04 has escaped assessment for the reason, mentioned above. It is proposed to initiate proceedings u/s 147 of the 1.T. Act,1961." 7. The main contention of the AR may be summarised that the assessee trust disclosed all the donations in the books of accounts and offered the income and claimed exemption as corpus fund of capital receipt in nature. Ld. AR further submitted that the assessee submitted details of the donor with their address and other required information. The assessee is not bound to give detail of source of source and it was the duty of AO to verify and examine the detailed rejoinder placed by the assessee before him and the AO simply made fishing inquiries and initiated the proceedings u/s 147 and 148 of the Act without application of mind. 8. Ld. DR has not disputed the fact that the assessee has disclosed all impugned donations in the books of accounts and offered the same as income and claimed exemption as corpus fund of capital in nature. From the reasons recorded by the AO as reproduced hereinabove, we see that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish even a single information. The onus to prove the genuineness of the claim was upon the assessee but it has failed to do so. Accordingly, the amount is added to the total income of the assessee." 10. On bare reading of the above operative part of the reassessment order passed u/s 147/144 of the Act, we note that the AO has not made any addition with regard to alleged donations of ₹ 16,61,000 as has been mentioned in the reasons recorded by the AO for issuance of notice u/s 148 of the Act. Ld. AR has also submitted copies of the letter dated 12.8.2004 issued by the ADIT(E), New Delhi wherein the ADIT(E) has asked the assessee to submit a list of donors and explanation towards excess of income over expenditure of ₹ 35,44,187. The AR has also submitted a copy of the reply filed by the assessee before ADIT(E) dated 19.8.2004 and copy of the ledger of donation wherein the names of all 12 donors as mentioned in the reasons recorded have been shown with details of cheques and amount of donation. Ld.AR vehemently contended that this detail was also filed before the AO with the return of income which clearly reveals that the alleged donors have been shown by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2011) 338 ITR 0051 (Del) and Jai Bharat Maruti Ltd. vs ACIT (2013) 258 CTR (Del) 462 and submitted that the order rejecting the assessee's objection to notice u/s 148 of the Act being non-speaking, and passed without application of mind, was liable to be set aside. The AR has also contended that where the reasons recorded is not a pointer and does not indicate escapement of income and where it is apparent that the AO did not apply his own mind to the information received from the Investigation Wing and failed to examine the basis and material, then assumption of jurisdiction u/s 147 of the Act and notice issued u/s 148 of the Act is not valid and bad in law. The AR has also placed reliance on the decision of ITAT Agra Bench in the case of M/s Rashi Buildcon (Pvt.) Ltd. in ITA No. 407/Agra/2012 for AY 2004-05 and submitted that the AO must have reason to believe that the income had escaped assessment prior to issuance of notice u/s 148 of the Act. The AR also reiterated its argument that the AO is alleging the amount received from 12 donors amounting to ₹ 35,57,480/-. The AR also contended that the assessee has shown entire amount of donation in the return of income and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
