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TMI Blog2019 (9) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... he seized document - In the light of details filed, bank account statement produced and explanation given by the appellant right from the proceedings under Section 132 (5), 143 (3) and under Section 147/148 in response to queries raised by the authorities below the impugned amount of ₹ 1,35,000/- mentioned by the brother-in-law of the assessee having received on various dates as due for return by him cannot be construed to be relating to the year in which such document was seized as it does not mention any specific date but the appellant has been able to substantiate various dates with amounts sent from time to time in earlier years. Thus we answer this question also referred for our opinion in the negative i.e. against the revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration ? 2. Whether the finding of the Tribunal that the addition of ₹ 1,35,000/- was vitiated in view of the material placed on record ? 3. Whether the Tribunal was right in law in holding the addition of ₹ 1,35,000/- by giving a finding which was neither the case of the Assessing Officer, nor the CIT (A) ? 4. Whether the Tribunal was right in law in holding that the issue about the amount advanced to Sh. H.C.Chopra was not before the Assessing Officer at the time of framing the original assessment when the same has been duly discussed in the proceedings u/s 132 (5) ? 2. After considering all the facts and circumstances and after hearing both the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court. 4. Learned counsel for the assessee has relied upon Commissioner of Income Tax versus Kelvinator of India (2010) 34 DTR (SC) 49 where in the similar question the Supreme Court has held as follows:- 4. On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go by and only one condition has remained, viz., that where the AO has reason to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 147 of the Act. However, on receipt of representations from the Companies against omission of the words reason to believe , Parliament re-introduced the said expression and deleted the word opinion on the ground that it would vest arbitrary powers in the Assessing Officer. We quote hereinbelow the relevant portion of Circular No.549 dated 31st October, 1989, which reads as follows: 7.2 Amendment made by the Amending Act, 1989, to reintroduce the expression reason to believe' in Section 147-- A number of representations were received against the omission of the words reason to believe' from Section 147 and their substitution by the 'opinion' of the Assessing Officer. It was pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad even requested the Assessing Officer to summon Mr. H.C. Chopra for examination as his testimony was absolutely necessary to decide the issue as on the basis of his letter the impugned notice under Section 148 of the Act was issued, nowhere mentioned either the dates or the amounts sent from time to time but the A.O. never acceded to this request which is against trite law that in case the request of the assessee to summon the creditor is not acceded to by the department, it will not justify the addition on that count. It was further pleaded that the department has accepted this fact and no further reference or appeal was filed before this Hon'ble Court. 6. Learned counsel appearing on behalf of the revenue has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th amounts sent from time to time in earlier years. Thus, in the light of above findings and evidence on record of various authorities below, we answer this question also referred for our opinion in the negative i.e. against the revenue and in favour of the appellant and hold that in the light of discussions as above and on perusal of various replies and evidence is produced as discussed in various orders of the authorities below that the ITAT was not right in law in holding that though no date of advance of loan or date of investment is available in the said letter the impugned amount of ₹ 1,35,000/- will be the year in which such document was seized or the seized document is found to be in possession of the applicant. Thus, the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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