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TMI Blog2018 (9) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... addition on other grounds which fact is verifiable from assessment order. Lucknow Bench of the Tribunal in the case of Anita Srivastava vs ACIT [2018 (2) TMI 1774 - ITAT LUCKNOW]has held that where a case has been reopened u/s 148 on account of some information and if addition is not made on account of that information then no other addition can be made on any other ground. Thus quash the assessment order as the notice issued u/s 148 is void ab initio and assessment is also void ab initio therefore, all the proceedings are illegal. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... kshi Overseas (P.) Ltd. where Hon'ble court had held that where no independent application of mind is made by the Assessing Officer, the notice issued u/s 148 was void ab initio. Without prejudice it was submitted that non statutory notice and notice u/s 133(6) dated 01/03/2012 for verification of cash deposits was not legal as no proceedings were pending at the time of issue of notice u/s 133(6) and Assessing Officer was not empowered to issue any notice without the prior approval of Principal Director or Principal Commissioner and in this respect our attention was invited to the proviso to section 133(6) of the Act. Learned A. R. submitted that Hon'ble Supreme Court in the case of Income Tax Officer, Ward-23(4), New Delhi vs. Sky View Consultants (P.) Ltd. [2018] 96 taxmann.com 424 (SC) vide order dated 17th August, 2018 has held that the notice issued u/s 131 without the authorization to exercise his power were invalid and therefore, has decided the issue in favour of the assessee. Learned A. R. submitted that the Assessing Officer did not take any approval as required by the Act and in this respect our attention was invited to copy of order sheet entries placed at pages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing cash deposits totaling to ₹ 29,50,000/- in his bank account maintained with State Bank of India, Hazratganj, Lucknow during the financial year 2008-09 relevant assessment year 2009-10. In compliance of non statutory letter dated 14.11.2011 assessee has submitted his PAN and information regarding filing of return but has not furnished source of said cash deposits. Further a notice u/s 133(6) dated 01.03.2012 and subsequent reminder latter dated 10.01.2014 were issued regarding verification of said cash deposits but no compliance has been made by the assessee in this regard till date. Thus it is clear that the assessee has no explanation to offer in this regard. In view of the above facts, I have reason to believe that the income of the assessee to the tune of ₹ 24,41,902/- (Rs.29,50,000/- -Rs.5,08,098/-) has escaped assessment for the Assessment Year 2009-10. Proceedings u/s 147 are being initiated and notice u/s 148 issued accordingly." 5.1 From the above reasons recorded, it is apparent that the Assessing Officer had in his possession certain information regarding deposit of cash in bank account of the assessee. The Assessing Officer wanted assessee to furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or fact, other than the facts set out in the reasons so recorded, it is not open to us to deal with the question as to whether the assessee could be said to be engaged in any business; all that is to be examined is whether the fact of the deposits, per se, in the bank account of the assessee could be basis of holding the view that the income has escaped assessment. The answer, in our humble understanding, is in negative. The Assessing Officer has opined that an income of ₹ 10,24,100 has escaped assessment of income because the assessee has ₹ 10,24,100 in his bank account but then such an opinion proceeds on the fallacious assumption that the bank deposits constitute undisclosed income, and overlooks the fact that the sources of deposit need not necessarily be income of the assessee. Of course, it may be desirable, from the point of view of revenue authorities, to examine the matter in detail, but then reassessment proceedings cannot be resorted to only to examine the facts of a case, no matter how desirable that be, unless there is a reason to believe, rather than suspect, that an income has escaped assessment. 9. Learned Departmental Representative has referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of reassessment proceedings, all that is to be seen as existence, rather than adequacy, of the material to come to the conclusion that income has escaped assessment. To us, there cannot be any, and there is no, doubt on the correctness of this proposition but then, as we have elaborately explained earlier in this order, the material must indicate income escaping assessment rather than desirability of further probe in the matter which may or may not lead to income escaping the assessment. On the basis of reasons as recorded in this case, such an inference about income escaping assessment, in our humble understanding, cannot be drawn. 10. In view of the reasons set out above, as also bearing in mind entirety of the case, we are of the considered view that the reasons recorded by the Assessing Officer, as set out earlier, were not sufficient reasons for reopening the assessment proceedings. We, therefore, quash the reassessment proceedings. As the reassessment itself is quashed, all other issues on merits of I.T.A. No.: 3814/Del/11 Assessment year: 2008-09 Page 6 of 6 the additions, in the impugned assessment proceedings, are rendered academic and infructuous." 5.2 Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details in relation to the transaction as specified in the reasons recorded by the Assessing Officer were submitted by the assessee to the Department but while completing the assessment, no addition/disallowance under this head was made. Thereafter the Assessing Officer has proceeded to disallow the claim made under section 54F of the Act which does not form subject matter of the reasons recorded for initiation of proceedings under section 147/148 of the Act. What we are to examine is when on a particular ground or reasons recorded by the Assessing Officer, he reopens the assessment but makes no addition on those grounds and reasons, then whether the Assessing Officer can make addition in that assessment order for some other grounds or reason, which do not form part of the reasons for reopening at all. In our humble understanding, it is in the negative. 8. In the case of CIT vs. Mohmed Juned Dadani (supra), the Hon'ble Gujarat High Court opined that when on the ground on which the reopening of assessment is based, no additions are made by the Assessing Officer in the order of assessment, he cannot make additions on some other grounds which did not form part of the reasons re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been explained, his jurisdiction came to a stop at that, and he did not continue to possess jurisdiction, to put to tax, any other income, which subsequently came to his notice, in the course of the proceedings, which were found by him, to have escaped assessment. 10. After taking guidance from the judicial principles laid down in the aforesaid cases and considering the facts and circumstances of the present case, we are of the considered opinion that the reasons recorded under section 148 of the Act does not pertain to the issue of claim under section 54F and, therefore, the disallowance made by the Assessing Officer is arbitrary, illegal and without jurisdiction. We accordingly set aside the order of the ld. CIT(A) and annul the assessment framed by the Assessing Officer under section 147/143(3) of the Act and delete the disallowance made under section 54F of the Act. We have allowed the legal ground in favour of the assessee, therefore, all other grounds on merits taken by the assessee become academic and infructuous." 7. In view of the above facts and circumstances of the case and keeping in view the judicial precedents, I allow additional grounds taken by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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