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TMI Blog2018 (3) TMI 1795X X X X Extracts X X X X X X X X Extracts X X X X ..... nts obtained and recorded by the Enforcement Directorate that Sh. Andaleeb Sehgal received a sum of US $ 62,000 on 5.3.2001 on account of commission for sale of Iraqi oil to Masefield AG. However, no such documents have seen the light of the day. Those documents might be perused by the AO/CIT (A) but neither those documents were referred in the impugned order nor given to the assessee nor brought before the Bench to substantiate the findings returned by AO as well as CIT (A). If any such documents have been perused by Enforcement Directorate, it was the duty of the AO to collect those documents during his own investigation or the ld. CIT (A) should have brought on record the set of those documents during appellate proceedings but both h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his mind. We are of the considered view that the entire case is based upon borrowed investigation stated to have been conducted by Enforcement Directorate and no evidence has been brought on record to connect assessee with the amount of US $ 62,000, rather it is a case of zero investigation. - Decided in favour of assessee. - ITA No.2482/Del./2012 (ASSESSMENT YEAR : 2001-02) - - - Dated:- 9-3-2018 - Shri B.P. Jain, Accountant Member and Shri Kuldip Singh, Judicial Member Assessee By : Shri Madhav Khurana, Advocate Revenue By : Shri Padam Singh, Senior DR ORDER Kuldip Singh, The appellant, Shri Andaleeb Sehgal (hereinafter referred to as the assessee ) by filing the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 148 of the Income-tax Act, 1961 (for short the Act ) vide letter dated 10.07.2008. AO, after rejecting the objections raised by the assessee, came to the conclusion that the income to the extent of US $ 62,000 has escaped assessment and thereby assessed income of US $ 62,000 in the hands of the assessee as business income for AY 2001-02. 3. Assessee carried the matter by way of filing appeal before the ld. CIT (A) who has confirmed the assessment order by dismissing the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. AR for the assessee that the AO has not supplied any document / material to substantiate his (AO s) satisfaction, ownership / operation of the said bank account to prove the alleged receipt of US $ 62,000. 9. There is not an iota of document on the file to show if the assessee is operating alleged account in which amount of US $ 62,000 was allegedly credited. Even, in the reasons recorded, father s name and address of assessee has not been mentioned nor there is any account statement showing credit and debit entry of the amount in question. AO has merely embarked upon the report sent by Enforcement Directorate. 10. When we peruse para 6.2 of the impugned order passed by ld. CIT (A) wherein it is mentioned that, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 12. The next contention raised by ld. AR for the assessee that the adjudication proceedings before Enforcement Directorate are still pending and AO has not conducted independent enquiry but based his findings on the material collected by the Enforcement Directorate only. When no such document has been placed before the Bench, it is proved that the AO has not made any independent enquiry by collecting necessary documents but merely based his findings on the basis of letter received from Enforcement Directorate. 13. Not only this, assessee even filed a Writ Petition No.13559 of 2009 in the Hon ble High Court of Delhi, copy of order available at pages 33 to 39 of the paper book, seeking direction to the Directorate of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded in the case do not refer to any material that came to the knowledge of the Assessing Officer whereby it can be inferred that the Assessing Officer could have formed a reasonable belief that the said amount had escaped assessment. The purported belief that income has escaped assessment is not based on any direct or circumstantial evidence and is in the realm of mere suspicion. The requirement of law is reason to believe and not reason to suspect . In the present case, since the purported reasons to believe recorded indicate that the Assessing Officer has acted on mere surmise, without any rational basis, the action of reopening of the Assessment is thus clearly contrary to law and is unsustainable. 16. Hon ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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