9911796707
TMI Blog2019 (6) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the assessment order itself in the first para on page 1 of the assessment order. See SUNRISE EDUCATION TRUST VERSUS INCOME TAX OFFICER (EXEMPTION) [ 2018 (2) TMI 1471 - GUJARAT HIGH COURT] , SH. ASHWANI KUMAR, VERSUS INCOME TAX OFFICER, [ 2016 (2) TMI 1159 - ITAT AMRITSAR (SMC).] and BIR BAHADUR SINGH SIJWALI VERSUS INCOME TAX OFFICER WARD 1, HALDWANI [ 2015 (2) TMI 60 - ITAT DELHI] Assumption of jurisdiction by the AO by issuing notice u/s 148 of the Act is bad in law. We, accordingly, quash the notice issued u/s 148, thereby, quashing the assessment order. - Decided in favour of assessee. - ITA No. 745/Del/2014, ITA No. 4144/Del/2018 - - - Dated:- 3-6-2019 - Shri N.K. Billaiya, Accountant Member And Shri S. Srivastava, Judicial Member For the Assessee : Shri Salil Kapoor, Sr. Adv., Sh. Sumit Lal Chandani, Adv., Ms. Ananya Kapoor, Adv. And Shri Sidharth Kanwan, Adv. For the Revenue : Ms. Ashima Neb, Sr. DR ORDER PER SHRI N.K. BILLAIYA, A.M. These are two separate appeals by the assessee preferred against two separate orders of the CIT(Appeals)-28, New Delhi dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o return has been filed either prior to or after issue of query letter/notice u/s 142(1) or where the time for issuance of notice u/s 143(2) has expired, the jurisdictional Assessing Officer may consider issuance of notice u/s 148 as per law after recording reasons therefore, if he/she has reason to believe that income has escaped assessment . In this case, query letter dated 11.02.2012 and 25.01.2012 have already been sent by this office to the assessee requiring him to intimate this office his PAN, status of filing of return and if return has already filed acknowledgement number, and date of filing, and income tax authority with whom return has been filed has to be intimated to the jurisdictional Assessing Officer. In response to no reply has been received from the assessee till date. As per Non-PAN AIR Information, during the FY 2008-09, the above mentioned assessee has deposited cash amounting to ₹ 36,64,857/- in his saving bank account. Since, the assessee failed to furnish any explanation regarding the source of above cash deposits despite getting repeated opportunities, hence, I have reasons to believe that the source of above cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: 7. The facts are not disputed. A bare perusal of the reasons recorded for issuance of notice u/s 148 of the Act, shows that the only material available before the AO was the AIR Information of the assessee having deposited an amount of ₹ 11.60 lakhs in his savings bank account. Remarkably, the reasons recorded did not even mention the bank in which such savings bank account was maintained. The assessee, as available from the first page of the assessment order, was issued a notice u/s 148 of the Act, in pursuance to the aforesaid reasons. The assessment order u/s 143(3) of the Act is dated 25.03.2013. The assessee had filed the return of income on 05.10.2005 and it had been stated in response to the notice u/s 148 of the Act that this return be treated as having been filed in response to this notice. In Bir Bahadur Singh Sijwali (supra), like in the present case, the reasons recorded indicated that cash deposits had been made in the bank account of the assessee. The Tribunal held that the mere fact that the deposits having been made in a bank account does not indicate that these deposits constitute an income which has escaped assessment. It was observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ld. Departmental Representative has referred to a number of judicial precedents in support of her stand that even deposits in the bank account, as having come to the notice of the Assessing Officer through AIR, can be reason enough for holding the belief that income has escaped assessment. She has relied upon the decisions in the cases of CIT vs. Nova Promoters Finlease (P) Ltd. [2012] 342 ITR 169/206 Taxmann 207/18 taxmann.com 217 (Delhi) but then none of the questions before Hon ble High Court had anything to do with reopening of assessment and this decision cannot, therefore, be taken as an authority on the legal issue which did not even come up for specific adjudication before their Lordships. As for her reliance on Hon ble Supreme Courts judgment in the case of Phool Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the additions, in the impugned assessment proceedings, are rendered academic and infructuous. 13. In the light of the judicial decisions discussed hereinabove and on finding parity in facts with the facts of the case in hand, we are of the considered view that the assumption of jurisdiction by the AO by issuing notice u/s 148 of the Act is bad in law. We, accordingly, quash the notice issued u/s 148 of the Act, thereby, quashing the assessment order. 14. Before parting, the DR strongly pays reliance on the decision of the Hon ble Supreme Court in the case of Raymond Woollen Mills Limited 236 ITR 34. We find that the facts of the case in hand are clearly distinguishable from the facts of the case considered by the Hon ble Supreme Court. Firstly, the Hon ble Supreme Court had observed that it cannot strike down the reopening of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
