9911796707
TMI Blog2017 (4) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... peal, only ground No. 3 relating to reopening of the case under section 147/148 was argued and heard. In this ground of appeal, the assessee has alleged that the Assessing Officer had not applied his mind for reopening of the case and simply on the basis of the information available from a third person, has reopened the case. 3. At the time of hearing, the learned counsel for the assessee invited our attention to the copy of the reasons recorded, which is placed at PB-12 and submitted that from the reasons recorded itself, it can be inferred that the Assessing Officer had not applied his mind and the case of the assessee has been reopened on borrowed satisfaction. It was further submitted that this fact is further strengthened from the fact that the reasons recorded did not bear any date. It was submitted that has not been made any positive enquiry before coming to the reasons that the income chargeable to tax has escaped assessment and therefore, it was argued that the assessment itself is bad in law and needs to be quashed. Reliance in this regard was placed on the following case law : (i) CIT v. SFIL Stock Broking Ltd. reported in [2010] 325 ITR 285 (Delhi) ; (ii) Mohd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Iraq as the remittance received against the export made to the Iraq were received less to that extent. Accordingly, the profit returned by the assessee from his export business from Iraq has been under assessed to the tune of ₹ 17276+1200=18476 USD/Rs. 56.15, i.e., ₹ 10,37,427 (in Indian currency) has been underassessed for the assessment year 2004-05 as the final payments were received by the assessee during the period relevant to the assessment year 2004-05. In view of the above, I have, therefore, reasons to believe that on account of the assessee's failure to disclose true and full particulars of his income in the return of income lied, income to the extent of ₹ 10,37,427 chargeable to tax has escaped assessment within the meaning of section 147 of the Income-tax Act, 1961 for the assessment year 2004-05. Issue notice under section 148 of the Income-tax Act, 1961. Notice under section 148 has been issued with the prior approval of the Additional Commissioner of Income-tax, Range-IV, Amritsar. Sd/- (T. L. Rajgotra) Income-tax Officer Ward 4(3), Amritsar. 6. From the above reasons recorded, we find that these reasons are un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Income-tax Act as mentioned below were initiated in respect of the relevant assessment year : Sl. No. Date Type Amount (Rs.) 1. 19-8-2003 Purchase of FDR/CCR No. (0870833) 5,00,000 2. 17-11-2003 Interest on FDR/CCR 6832 5,06,832 As per records the assessee has not filed his return of income for the said assessment year and as such I have reason to believe that the income of ₹ 5,06,832 has escaped assessment for the assessment year under reference. Accordingly notice under section 148 of the Income-tax Act, 1961 is being issued in this case. Sd/- Income-tax Officer Ward 3, Srinagar.' 7.1 At the first instance, we may point out that the so-called reasons recorded by the Assessing Officer are mere information received from the J K Vigilance Organisation during August through the office of the Additional Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons recorded by the Assessing Officer could not be held the reasons for proceedings under section 147/148 of the Act, since it was only an information and was not at all discernible as to whether the Assessing Officer has applied his mind to the information and independently arrived at a belief, on the basis of material which he had before him, the income of the assessee had escaped assessment. While taking such a view, we are fortified by the ratio laid down in the judgment of the hon'ble Delhi High Court in the case of CIT v. SFIL Stock Broking Ltd. [2010] 325 ITR 285 (Delhi) wherein it has been held as under (page 289) : 'After having heard the counsel for the parties, we are inclined to agree with the submissions made by the respondent/assessee. We find that the Supreme Court in Asst. CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500 (SC) made it absolutely clear that before an Assessing Officer issues a notice under section 148, thereby reopening the assessment under section 147 of the said Act, he must have formed a belief that income had escaped assessment and that there must be some basis for forming such a belief. The Supreme Court made it cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the hon'ble Supreme Court in the case of Rajesh Jhaveri (supra) the Delhi High Court concluded that the Assessing Officer has not applied his mind to the information and independently arrived at a belief that on the basis of the material which he had before him, income had escaped assessment. In the instant case also, it is crystal clear that the Assessing Office has not applied his mind and also not independently arrived at a belief that on the basis of the material he had before him, income has escaped assessment, and therefore, we allow ground Nos. 1 to 4 of the appeal and quash the reassessment order. 7. We find that the Tribunal after taking into account the judgment of the hon'ble Delhi High Court in the case of CIT v. SFIL Stock Broking Ltd. (supra) has quashed the assessment order. The aforesaid case law as relied on before us were relied upon before the learned Commissioner of Income-tax (Appeals) by the assessee, but the learned Commissioner of Income-tax (Appeals) has distinguished the case law by holding as under : (i) CIT v. SFIL Stock Broking Ltd. [2010] 325 ITR 285 (Delhi) The abovesaid case was distinguished by the learned Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
