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TMI Blog2019 (11) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case and in law, reopening based on property sale information as known from assessment order cannot give rise to valid reasons to believe for income escaping assessment so entire foundation is invalid and all proceedings are bad in law,' 1.3 That on facts and circumstances of the case and in law, there is no coherence in reopening ground stated in assessment order and assessment of capital gains made finally which makes entire foundation is invalid and all proceedings are bad in law; 1.4 That on facts and circumstances of the case and in law, since no valid notice uls 143(2) is issued during assessment proceedings as evident from assessment order entire assessment made u/s 143(3)/147 falters and so all proceedings are bad in law; 1.5 That on facts and circumstances of the case and in law, notice issued u/s 148 dated 30.03.2017 is void ab initio and is without valid jurisdiction and authority of law and it makes all subsequent proceedings including orders passed by ld A 0 and are also bad in law, 2. That on facts and 'circumstances of the case and in law, ld CIT-A erred in confirming the addition of Rs. 48,14,839 as long term capita l gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws and requested that the same may kindly be considered with regard to reopening of cases u/s. 147 of the I.T. Act. 1. Raymond Woollen Mills Ltd. v. ITO And Others [236 ITR 341 (Copy Enclosed) where Hon'ble Supreme Court held that in determining whether commencement of reassessment proceedings was valid it has only to be seen whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. 2. Yuvraj v. Union of India Bombay High Court [20091 315 ITR 84 (Bombay)/r20091 225 CTR 283 (Bombay) Points not decided while passing assessment order under section 143(3) not a case of change of opinion. Assessment reopened validly. 3. Devi Electronics Pvt Ltd Vs ITO Bombay High Court 2017-TIQL-92-HC-MUM- II The likelihood of a different view when materials exist of forming a reasonable belief of escaped income, will not debar the AO from exercising his jurisdiction to assess the assessee on reopening notice.. 4. Acorus Unitech Wireless (P.) Ltd. Vs ACIT Delhi High Court T20141 43 taxmann.com 62 (Delhi)/r20141 223 Taxman 181 (Delhi)(MAG)/r20141 362 ITR 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee had received bogus loss from his broker by client code modification, reassessment on basis of said information was justified. 12. Home Finders Housing Ltd. Vs. ITO (2018) 94 taxmann.com 84 (SC). SLP dismissed against High Court's order that non-compliance of direction of Supreme Court in GKN Driveshafts (India) Ltd. Vs. ITO (2002) 125 Taxman 963 that on receipt of objection given by assessee to notice under section 148, Assessing Officer is bound to dispose objections by passing a speaking order, would not make re-assessment order void ab initio. 13. Baldevbahi Bhikhabhai Patel vs. DCIT (Gujarat High Court) (2018) 94 Taxmann.co, 428(Gujarat) Where revenue produced bunch of documents to suggest that entire proposal of reopening of assessment alongwith reasons recorded by the Assessing Officer for same were placed before Additional Commissioner who, upon perusal of same, recorded his satisfaction that it was a fit case for issuance of notice for reopening assessment, reassessment notice issued against assessee was justified. 4. I have heard both the parties and perused the records, the impugned order as well as the case laws relied by both the parties, copy of Form FOR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten: "Yes, it is a fit case for issue of notice u/s 148 of the Act, 1961." I find the Hon'ble Delhi High Court in the case of N.C. Cables Ltd. (supra) has held as under:- " Reassessment-Issuance of Notice-Sanction for issue of Notice-Assessee had in its return for A Y 2001-02 claimed that sum of Rs. 1 Crore was received towards share application amounts and a further sum of Thirty Five Lakhs was credited to it as an advance towards loan-Original assessment was completed u/s 143(3)-However, pursuant to reassessment notice, which was dropped due to technical reasons, and later notice was issued and assessments were taken up afresh-After considering submissions of assessee and documents produced in reassessment proceedings, AO added back a sum of Rs. 1,35,00,000-CIT(A) held against assessee on legality of reassessment notice but allowed assessee's appeal on merits holding that AO did not conduct appropriate enquiry to conclude that share inclusion and advances received were from bogus entities-Tribunal allowed assessee's appeal on merits-Revenue appealed against appellate order on merits-Assessee's cross appeal was on correctness of reopening of assessment- Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed." 4.2 Since in the present case the approving authority has given approval to the reopening of assessment in a mechanical manner without due application of mind by mentioning only "Yes, I am satisfied that it is a fit case for issue of Notice u/s. 148" in Column No. 12 of the Format for Recording the Reasons for Initiating Proceedings u/s. 147 and For obtaining the Approval of the Addl./JCIT Commissioner of Income Tax and therefore, the legal issue in dispute is squarely covered by the aforesaid finding of the Tribunal, hence, respectfully following the aforesaid precedent i.e. ITAT, SMC, Bench, New Delhi decision dated 26.9.2019 in the case of Krishna Print Pack, Meerut vs. ITO, Ward 1(3), Meerut decided in ITA No. 5135/Del/2018 relevant to assessment year 2009-10, the reassessment is hereby quashed and accordingly the legal ground no. 1.5 is allowed. The judicial decisions relied upon by the Ld. Sr. DR have been duly considered. In my considered view, I do not find any parity in the facts of the decisions relied upon with the peculiar facts of the case in hand. Since the assessee succeeds on this legal ground challenging the validity of reassessment proceedings, the addi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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