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TMI Blog2019 (11) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... re the issue on merits have been rendered academic and requires no adjudication. Thus, the grounds of Assessee are allowed. - ITA No.921/PUN/2014 - - - Dated:- 16-10-2019 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM For the Assessee : Shri P.S. Shingte. For the Revenue : Shri M.K. Verma. ORDER PER ANIL CHATURVEDI, AM : 1. This appeal filed by the assessee is emanating out of the order of Commissioner of Income Tax (A) 2, Nashik dated 07.03.2014 for the assessment year 2006-07. 2. The relevant facts as culled out from the material on record are as under :- Assessee is an individual stated to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad in law. 2. On the facts and in the circumstances of the case and in the law the lower authorities erred in not passing speaking order in reference to objection raised by the appellant therefore, the entire proceedings are bad in law 3. On the facts and in the circumstances of the case and in the law the lower authorities erred in making the addition of a sum of ₹ 51, 24,097/- on account of cash payments made to parties for claiming alleged fake capital gain. The addition is entirely based on presumption of Assessing Officer and is by disregarding appellant submission in this regard and therefore needs to be struck down. 3. All the grounds being inter-connected are considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment proceedings for A.Y. 2006-07 in assessee s case were completed on 24.12.2008. He submitted that in between assessment proceedings for A.Y. 2007-08 were also initiated on 18.09.2008 and in the assessment order passed u/s 143(3) of the Act dated 23.12.2009 for A.Y. 2007-08, there is a reference about the documents found during the search. He further submitted that the addition made in the order u/s 143(3) of the Act for A.Y. 2007-08 on account of capital gains was subsequently deleted by the AO by suo moto by passing a rectification order as assessee has offered the same for taxation. He therefore submitted that the necessary enquiries were made regarding entire purchase of sale of share transactions and after application of mind, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have reason to believe that (b) Income chargeable to tax has escaped the assessment and (c) In cases where the assessment sought to be reopened is beyond the period of four years from the end of the relevant assessment year, then an additional condition is to be satisfied viz: there must be failure on the part of the Assessee to fully and truly disclose all material facts necessary for assessment. 5. In the present case, notice under section 148 of the Act has been issued on 30.03.2011 in relation to assessment year 2006-07. Hence, the reopening of assessment is within a period of four years from the end of the relevant assessment year. In such cases, the Assessing Officer would be clothed with jurisdiction to issue a notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment was framed u/s 143(3) and the submissions of the assessee in respect of purchase and sale of shares was accepted by the AO and no addition was made. It is also a fact that the assessee and his wife are assessed by the same Assessing Officer. Further, the document found at the place of business of assessee s wife was found during the course of survey conducted on 29.2.2008 and the assessment of the assessee u/s 143(3) for A.Y 2006- 07 was finalized on 24.12.2008 meaning thereby that the document found during the course of the survey and which is the basis of the present reopening was already before the AO while conducting the assessment proceedings. In such a situation, the conclusion would be that the document found during surv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review ; he has the power to reassess. But reassessment has to be based on fulfillment of certain preconditions and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of change of opinion as an inbuilt test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, the Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live ..... X X X X Extracts X X X X X X X X Extracts X X X X
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