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TMI Blog2020 (2) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly the reopening in this case is bad in law and therefore, the same is hereby quashed. Accordingly, this legal ground raised by the assessee s is allowed. - ITA No. 2188/Del/2019 - - - Dated:- 13-2-2020 - Shri H.S. Sidhu, Judicial Member For the Assessee : Sh. Ved Jain, Advocate Ms. Surbhi Goyal, CA For the Department : Ms. Parul Singh, Sr. DR. ORDER This appeal filed by the assessee is directed against the order passed by the Ld. CIT(A)-15, New Delhi on 14.01.2019 in relation to the assessment year 2008-09. 2. At the time of hearing, Ld. Counsel for the assessee stated that the similar issue has already been adjudicated and decided by the various Benches of the ITAT, Delhi. He requested that respectfully following the same, the issue in dispute may be decided in favour of the assessee by deleting the addition in dispute and allowing the appeal filed by the assessee. In support of his contention, he filed a Paper Book containing pages 1-121 and the copies of the various decisions supporting the assessee s case. 3. On the contrary, ld. DR relied upon the orders of the authorities below, especially the impugned order passed by the Ld. CIT(A) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 148, is not correct. The JCIT, Range- 45 himself marked the date of 27.03.2015 below his' signature on the proforma as well as on note sheet Copies of the same are attached herewith, the date 30.03.2015 mentioned on approval proforma is merely a typographical error. It is pertinent to mention here that copies of the same have already been provided to the AR of the assessee during inspection of file on 10.07.2017. 2.2 Disposal of objections raised against the issue of notice u/s 148: The assessee in his submission before your office slated that during the course of assessments he requested the AO on 15.05.2015 to furnish copy of reasons recorded for re-opening the case documents or the papers seized or the statements relied-upon by the investigation department and AO did not pay heed to the request of the assessee. Again on 12.01.2016 20.01.2016 assessee requested the AO to provide above said information. The assessee also submitted that he filed objections on 29.02.2016 with regards to reopening the case and the same have not been disposed off by the AO before passing the assessment order on 17.03.2016. AO's Comments: - It is to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 5,10,000/- vide demand drafts and ₹ 15,000/- in cash is mentioned and nowhere in the records the amount of ₹ 20,75,000/- paid as capitation feel Donation fee paid by therassessee, is mentioned in the documents/ material seized during the search in the premises of M/s Santosh Group of Institutions Trusts. AO's Comment: It is submitted that a search seizure action u/s 132 of the IT. Act was carried out on 27.06.2013 in Santosh Group of Institutions Trusts, during the search proceedings various documents/registers/ vouchers were found pertaining to feel capitation fee paid by students who were studying/ had studied in Santosh Group of Institutions. During the Statement recorded during search proceedings, Dr. P Mahalingam (Chairman and managing trustee of Santosh group) admitted that he received facilitation fee-from students for admission in various courses offered by his group of institutions. In question no. 56 57 he admitted that money received was unaccounted cash. Further, on showing the seized registers he admitted (Q. no. 64, 65 66) that total receipts reflecting in the registers are partly accounted for and partly not. All the registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uja was studying in Santosh Medical College in MBBS and this fact has not been challenged by the appellant. The plea of the appellant that there is no material with the AO for such initiation of 147 proceedings has been considered and it is gathered that in the assessment order itself, the relevant seized document has been clearly mentioned on page 2, where the fee paid in cash of ₹ 20,75,000/- and ₹ 15,000/- and further, by DO ₹ 5,10,000/- totaling to ₹ 26,00,OOO/- is shown. In this light, there is no merit in the submission of the appellant that there is no material before the AO for initiation of reassessment proceedings in this case and the plea of the appellant deserves to be rejected. The following judgements of Hon'ble Courts clearly mention that sufficiency of reasons in initiation of reassessment proceedings is not necessary: - In the case of S. Narayanappa vs. CIT 63 ITR 219 Hon'ble Supreme Court has held that The sufficiency of the grounds which induced the ITO to act is not a justifiable issue. It is of course open for the assessee to contend that the ITO did not hold the belief that there had been such non-disclosure .. In oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliable. Formation of his belief is not a judicial decision but is an administrative decision. Nevertheless, he is required to act fairly and judiciously. In the case of GKN Driveshafts (India) Ltd. v. ITO 125 Taxman 963 Hon'ble Supreme Court has held that when a notice under section 148 is issued, the proper course of action for the notice is to file return and if he so desires, to seek reasons for issuing notice. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. Apparently in this case no objection has been filed by the appellant before the Assessing Officer regarding the reassessment proceedings. The appellant has relied upon many decisions of Hon'ble Courts which is different from the facts and circumstances of the case and this will not apply mechanically without having the similar facts and circumstances and during the course of appellate proceedings the appellant has failed to co-relate the facts of the case of the appellant how these case laws ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for the relevant assessment year or years referred to in subsection( 1) of section 153A. This makes it clear that in the earlier provisions, the basic requirement for initiation of section 153C is that the documents seized or requisitioned belonged to a person other than the person in whose case search has taken place. If it does not belong to the third party action u/s. 153C initiated by the Revenue Officers in many cases were held as quashed or null and void by various Hon'ble High Courts and Hon'ble ITAT including ITAT Delhi and Hon'ble High Court of Delhi. Some of these cases are as under:- In the case of Pepsi Foods (P.) Ltd. vs. ACIT 52 taxmann.com 220 Hon'ble High Court of Delhi has held that - It is evident from the satisfaction note that apart from saying that the documents belonged to the petitioner and that the Assessing Officer is satisfied that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly, both the dates pertains to the earlier previsions of the Act where 153C proceedings could have been initiated only if the documents belong to the person other than the person in whose case search has taken place. Further, the documents seized in this case belong to the person in whose case search was initiated and the documents do not belong to the appellant. Hence, there is no merit in the submission. of the appellant and in considering this written submission that proceedings u/s 153C should have been initiated by the Assessing Officer in this case and not the provisions of section 148 and the contention raised by the appellant during the course of appellant proceedings deserves to be dismissed. Hence, there is no substance and merit in the submission of the appellant that in this case initiation of proceeding u/s 147/148 (instead of 153C proceedings) is bad in law and in this light also the contention raised by the appellant is dismissed. 4.1 As argued by the Ld. Counsel for the assessee that the notice u/s. 148 of the Act was issued on 27.3.2015 and the reasons for reopening of assessment have been recorded, after issuance of the notice on 30.3.2015. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the eyes of law and re-assessment on this account is liable to be quashed, hence, I quash the reassessment order. 4.2 Keeping in view the facts and circumstances of the present case and the case laws applicable in the case of the assessee, I am of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and therefore the same is quashed. My aforesaid view is fortified by the following decisions including the ITAT, SMC, Bench, New Delhi decision dated 16.10.2019 in the case of Dharmender Kumar vs. ITO, Ward 65(5), New Delhi decided in ITA No. 2728/Del/2018 relevant to assessment year 2008-09 wherein the following case laws were followed on similar facts and circumstances of the case. A) United Electrical Company (P) Ltd. Vs. CIT Ors. 258 ITR 317 (Del.) In this case, approval by the Addl. CIT u/s. 151 was given in the following terms:- Yes, I am satisfied that it is a fit case for issue of notice u/s. 148 of the Income Tax Act. Analyzing, the above satisfaction/approval, it has been held that the CIT is required to apply his mind to the proposal put up to him for approval in the light to eh material rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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