9911796707
TMI Blog2017 (3) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence, the notice shall be deemed to be served on the assessee. Therefore, the contention of assessee regarding invalidity of assessment on the basis of non-service of notice u/s. 148 is rejected. AR of the assessee had filed the details of investments held as on 31.03.2002 with the submission that money in question was received as a result of sale proceeds of investment, which results that an asset held by the appellant has been converted into money at cost and hence, there will be no effect in the balance sheet and there cannot be any accommodation entry regarding sale of an asset which was already held by the assessee. It was also the contention of the assessee that once the prior investments are sold and payments realized by cheques, how such sale could be doubted without doubting the purchase of assets already held by the assessee. The ld. Authorities below have failed to examine this aspect of the case nor have given any finding on the same, particularly when the assessee had submitted the details of prior investments held by it and documentary evidences relating to their sale before the authorities below. In presence of these facts, we deem it expedient in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation found that the assessee has received an amount of ₹ 21,25,000/- towards accommodation entries, the details of which are as under : S. no. Amount Instrument No. Date Concern from which received 1. 2,50,000 944722 04/04/2002 Raghubir Singh 2. 2,50,000 837796 11/04/2002 Rajan Jassal 3. 1,25,000 854728 11/04/2002 Parminder Singh 4. 2,50,000 946032 11/04/2002 Parminder Singh 5. 2,50,000 952887 11/04/2002 Sarbjeet Singh 6. 5,00,000 6459 28/08/2002 Jagat Enterprises 7. 5,00,000 6809 05/09/2002 Shyam Fabrics Total 21,25,000 The Investigation Wing also recorded statements of above Shri Rajan Jassal, Perminder Singh and Raghubir Singh on 04.02.2004, 22.03.2005 and 22.03.2005 respectively. In their statements, they have admitted that they floated these entities only to provide accommodation entries in the form of cheques in lieu of unaccounted cash for providing accommodation entries for bogus expenditure. The Assessing Officer issued notice u/s. 142(1) on 16.08.2010. In this notice, the AO required the details of the transaction, confirmations, name and address of the persons from whom the above amounts were received etc. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was returned back and hence not served at all. 2. The notice must have been issued and served. The appellant filed his return from the address - C- 107, ABC Complex, 20 Veer Savarkar Block, shakarpur, Delhi 110092. Copy of the ITR Acknowledgement is enclosed to substantiate the same. 3. Even the controversial entries which the ld. AO stated in his reasons for reopening mentioned the bank a/c in which the said amounts were received i.e. Standard Chartered Bank had the same address. Copy of bank statement is enclosed which also states that the address of the appellant is C- 107, ABC Complex, 20 Veer Savarkar Block, Shakarpur, Delhi 110092. 4. However, the ld. AO sent the notice at 1/5179, Balbir Nagar, Gali No. 7, Shahdra Delhi, which was not the address of the appellant. Hence the notice was never served at all. 5. Further, the ld. AO was aware of the correct address and he sent notice u/s 142(1) at the correct address only. 6. An affidavit that no notice u/s 148 was received by the appellant ever is enclosed. 7. The notice must have been issued and served, however in the appellant's case notice was never served. Hence, the issue of notice u/s 148 itself is void and the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time renders the reopening void. A notice u/s 148 without the communication of the reasons therefore is meaningless inasmuch as the AO is bound to furnish the reasons within a reasonable time. Where the notice has been issued within the said period of six years but the reasons have not been furnished within that period is hit by the bar of limitation because the issuance of the notice and the communication and furnishing of reasons go hand-in-hand. 4. The Delhi ITAT bench in Gomti Textiles Pvt. Ltd. vs. ITO ITA No. 1520/Del/2011 pronounced on 8th July 2011 has also held that if reasons are not supplied within the time limits u/s 149, then re-opening u/s 147 is invalid. 5. Hence, assessment u/s 147 is void and should be quashed. d. Non-application of mind of the AO 1. The Id. AO in his reasons for re-opening has stated as under: "....the DIT (Inv), New Delhi has established (he non-genuiness of transactions, whether shown by beneficiaries as inflow of Share Capital or receipts of Gifts or consideration for sale-purchase.... " 2. The Ld. was not even aware of the nature of receipt while issuing notice u/s 148. 3. The Id. A.O. just mentioned that due to findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Id. AO raises doubts beyond question in not providing ample opportunity in the instant case, it is humbly requested that documents now submitted be allowed as additional evidence u/r 46A. g. The detail of the payments received by the appellant along with appellant's remarks are as under: Amount Date Instrument No Name of Person Remarks 250000/- 04.04.2002 944722 Raghubir Singh The said amount was received against sale of 2500 shares of Aerens Buildwell Ltd vide Bill dated 4.4.2002. 250000/- 11.04.2002 837796 Raj an Jassal The said amount was received against sale of 2500 shares of Aerens Buildwell Ltd vide Bill dated 11.4.2002 125000/- 11.04.2002 854728 Parminder Singh The said amount was received against sale of 1250 shares of Aerens Buildwell Ltd vide Bill dated 11.4.2002. 250000/- 11.04.2002 946032 Parminder Singh The said amount was received against sale of 2500 shares of Aglow Finance Ltd vide Bill dated 11.04.2002. 250000/- 11.04.2002 952887 Sarabjit Singh The said amount was received against sale of 2500 shares of Aglow Finance Ltd vide Bill dated 11.04.2002 500000/- 28.08.2002 6459 Jagat Enterprises Mr. Jagat is proprietor of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditworthiness: The purchasers of investments had sufficient balance in their accounts to enable them to purchase the investments as the payments for purchase were made by proper banking channel. p. The Ld. A.O. did not bring any material to prove that the payments received by the appellant for sale of investments actually emanated from the coffers of the appellant-company so as to enable it to be treated as undisclosed income of the appellant-company. The Hon'ble High Court of Delhi in the case of CIT vs. Value Capital Services Pvt. Ltd. (2008) 307 ITR 334(Del) has held that: "There was an additional burden cast on the revenue to prove that the investment made by the applicant actually emanated from the coffers of the assessee so as to enable it (o be treated as undisclosed income ". q. Further the Delhi High Court in CIT vs. Medshave Health Care Ltd. [2010-ITRV-HCDEL- 13] ITA No. 124/2010 pronounced on 9.2.2010 has held that where assessee company had been holding the shares which were sold by it during the year there was no reason to hold these transactions to be sham. r. In ITO vs. Tulip Engineering P. Ltd. ITA No. 4629 (Del) / 2010 dated 21.01.2011 it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove that the payments made by the purchasers actually emanated from the coffers of the appellant-company so as to enable it to be treated as undisclosed income of the appellantcompany. ix. The Ld. A.O. did not adhere to the established law in judicial decision of the jurisdictions courts and arrived at conclusion without applying his mind in judicious way. In view of above facts and judicial decisions it is be contended that notice u/s 148 is void and needs to be quashed impromptu and the addition made by Ld. Assessing Officer is totally baseless and is without application of his mind and is not based on the facts of the case and without giving opportunity to the appellant but are based on surmises and conjectures." 4. On the other hand, the learned DR relied on the order of lower authorities. He tried to justify that the notice was duly served upon the assessee. The appellant has not informed to the department that the address has been changed. He had filed return for the assessment year 2003-04 at the address, C-107, ABC Complex, 20 Veer Savarkar Block, Shakarpur Delhi 110092 and for the assessment year 2009-10, he has filed return at another address, therefore, the AO was ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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