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TMI Blog2017 (10) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Both the sides have advanced their arguments on both the legal and merits of the case. 3. At the outset, learned senior departmental representative made an objection not to hear this appeal on the objection/plea that similar cases are pending in other benches before this Tribunal. I have perused this request but do not find the same in order. Since this is revenue's appeal and pending since long from 2015 and assessee is ready with his legal arguments and in past revenue has sought various adjournments as evident from case records/proceedings sheets, adjournment cannot be granted as prayed by the Ld. departmental representative. Therefore, I reject this request and proceed to decide the matter after giving detailed hearing to both the sides. I am of the opinion that whatever decision is taken here may be followed in other cases, if facts, so justify. 4. Now, inviting my attention to the other objection which was raised by Ld. departmental representative challenging that assessee's cross objection are time barred and should be dismissed in limine. Ld Sr DR has filed a note in this regard which is taken on record. I have carefully gone through Ld DR's objection in this regard a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (C) which is also adjudicated by the commission of income tax appeals at page No. 9 and 10 of the order passed. Add page No. 6 and 7 of the CIT appeals order reasons recorded under section 148 are reproduced ipsissima verba (as it is). From text of the reasons recorded under section 148 in the present case it is clearly visible that same are recorded without any application of mind and simply on basis of order passed by Commissioner of income tax appeals which has been not correlated with the present year facts particularly/explicitly. Only on the basis that in one year certain disallowance and additions are made, present reopening action is made under section 148, without correlating the facts of the year in consideration with the facts of earlier year. Even otherwise it is demonstrated from reasons recorded that without independent application of mind reopening is made under section 148. We rely upon Delhi bench of ITAT decision in case of Thandi Ram Jai Narain (order dated 27/06/2017) for maintainability of application filed under rule 27. As far as invalidity of reopening is concerned, for non application of mind, recent decision in case of Meenakshi overseas reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of rival contentions on tenability of reopening under section 148, I find force in the arguments of Ld. counsel of the assessee. As far as assesse's application under rule 27 is concerned, same is duly supported by various decisions cited by the Ld. counsel of the assessee one of which was passed by this Tribunal in D bench in ITA number 1289/del/2013 in case of Thandi Ram Jai Narain, wherein this Tribunal (authored by me), has held in paragraph 9 of the order that respondent has legal right to support the order of first appellate authority on any ground decided against him even though no independent appeal/cross objection is filed, relying upon another decision of this Tribunal passed in case of Gurinder Kaur reported in 102 ITD 189. Accordingly, the application filed under rule 27 is valid and proceeded to be adjudicated. Before proceeding further, the reasons recorded in present case are reproduced below: "As per records ITR for A.Y.2008-09 has been filed on 10-09-2009 declaring income of Rs. 3,27,854/- which was processed u/s 143(1) on 31-03-2011 on the same income. On verification of the ITR for the year under consideration it is seen that the Assessee has claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by the Commissioner of income tax appeals can become the basis of a valid reopening provided assessing officer rightly and correctly records his belief in the reasons as to how on basis of said order income has escaped in period under consideration. As rightly argued by the ld. AR, once the basis and foundation of the reasons is extricated and uprooted, entire exercise fails. In present facts I have carefully compared the reasons recorded and final order passed by the assessing officer, on such comparison there is no coherence in the two. Lack of this coherence has made the reasons defective. When such is the fact position I cannot approve reopening action which is plainly and patently against law. Accordingly the cross objections filed by the assessee and application filed under rule 27 are allowed and reopening is quashed. 8. Although I have quashed the reasons recorded and reopening made by the assessing officer, for sake of completeness, I record my findings on the merits of the case below, which are very well dealt with by first appellate authority by detailed reasoning which could not be countered by Ld. departmental representative before me. 9. The merits o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in loan agreement i.e. House No.9, West Punjabi Bagh, West Avenue, Delhi-220026, has already been purchased by S. Sukhbir Singh (Husband of the Assessee) on 25th day of February, 1970 and thus the observation of the Ld.AO being the same property purchased against the loan is factually not correct. 1. The appellant produced the copy of bank statement along with detailed chart for preparation of FDR which clearly reflect that Rs. 2.50 crores have been received by her against loan from ICICI Bank under loan against property (LAP) on 05-01-2007 and 5 FDRs were created on 12-01-2007 of Rs. 50 lakh each. 2. Thereafter such FDRs are utilized for purchase of property and jewellery with the clear intention to conduct the business from A.Y.2008-09. (ii) The most relevant aspect, which is to be seen in this case, is the intension of the Assessee for purchase of jewellery, gold, diamond & property that can be reflected from the facts of the case and the conduct of the Assessee. The Assessee has taken a loan of Rs. 2.5 crores for starting his business and as a prudent businessman, she has invested such amount for purchase of jewellery and property. The intension of Assessee cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has deleted the addition of rupees 8 lacs which was made by assessing officer as unexplained credit in hands of the assessee, on first principle that under reopening scope of the proceedings are confined to the reasons recorded, as rightly canvassed by assessee's counsel. During the course of the hearing my attention was drawn to section 147 of the Income Tax Act, 1961 and explanation 3 thereto wherein on subsequent coming to notice after reopening the case, any issue the income in respect of which has escaped assessment, then the same can be included in limited reopening proceedings. I have carefully gone through the contents of the said provision. It is seen that said explanation was inserted by Finance No. 2 act 2009 with retrospective effect from 1/4/1989 so as to give the power to the assessing officer to consider other issues on which reasons are not recorded, while making the assessment under section 147. However from careful perusal of the said explanation following features are noteworthy: i) That only those issues can be considered on which income has escaped assessment; ii) that only when same comes to assessing officers notice subsequently in the course of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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