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TMI Blog2021 (1) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ital or not or any return of income was filed or not. Even at the time of seeking approval u/s.151, it has been categorically mention that in item no.8 that ITR has not been filed. Based on this recommendation and Assessing Officer s satisfaction, approval has been granted that it is a fit case for issuing notice u/s.148, whereas the fact of the matter is that income tax return for Assessment Year 2010-11 was duly filed in time on 12.08.2010 u/s. 139 (1) and same was available on ITD system which is also evident from the comments of the Assessing Officer filed before the Ld. CIT (A) as incorporated above. Thus, the very premise for reopening was that the assessee has not filed the return of income which has been found to be factually inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of mind on the basis of which, the assumption of jurisdiction by the AO to proceed U/s. 147 / 148 is illegal and invalid in law. 3. That under the facts and circumstances, there is no justification in law as well as on merits in making addition of ₹ 5,00,000.00 U/s. 68 for alleged accommodation entry received from Mega Top Promoters (P) Ltd. 4. That under the facts and circumstances, there is no justification in law as well as on merits in making addition of ₹ 10,00,000.00 U/s. 68 for alleged accommodation entry received from Victoryy Software (P) Ltd. 5. That under the facts and circumstances, the Ld. AO erred in assuming commission expenses @ 1.8% on alleged accommodation entry of ₹ 15,00,000.00 consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer on the basis of material found/ information received during the course of search in the premises of Jain Brothers came to the conclusion that assessee has taken accommodation entry to ₹ 15 lac from the following two parties through S.K. Jain Group. Cheque Book Date From company name To company Bank Cheque/RTGS/PO No. Amount (Rs.) Middleman/Mediator Annexure Page No. 23.07.2009 MEGA TOP PROMOTER S P. LTD KRISH IMPEX P. LTD AXIS RTGS 5,00,000/- Parmjeet Meerut A-21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the Assessing Officer by the then CIT(A)-5, asking to clarify/comment regarding filing of original return of income. As per the reasons recorded for reopening, it is mentioned that no return has been filed by the appellant for the year under consideration, whereas in the submission by appellant, it is stated that the return of income for the year under consideration was originally submitted on 12.08.2010. The Assessing Officer was asked to comment on this factual infirmity in the reasons recorded. 4.3 In his reply, the Assessing Officer i.e. ITO Ward-14(4), New Delhi stated vide letter dated 29.01.2019:- In this connection, it is submitted that as per the ITBA/ITD system the assessee company has submitted its return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded it can be seen that the Assessing Officer has discussed the entire material having live link nexus to the income escaping assessment with regard to bogus accommodation entry of share application money from these two companies and assessee was found to be beneficiary of such accommodation entry, therefore, the reasons recorded are valid to assume proper jurisdiction. He strongly relied upon the observation of the Ld. CIT (A). 7. After considering the rival submissions and on perusal of the material on record specifically with regard to validity of proceedings u/s.147 as argued before us, it is seen that the Assessing Officer in the reasons has categorically mentioned that no return of income was filed for Assessment Year 2010- 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission of vital fact of filing of return of income has been frowned upon by the Jurisdictional High Court in the case of PCIT Vs. RMG Polyvinyal (I) Ltd. 396 ITR 5 (Del.) In this case, the A.O. reopened the case on the premises that the return was not filed as per database of Deptt., although it was already filed. Held (from head note) The information received from the investigation wing was not tangible material per se without a further enquiry having been undertaken by the AO, who had deprived himself of that opportunity that proceeding on erroneous premise that the assessee had not filed a return for the A. Y.2004-05, when in fact it had. Similar view was taken by the Hon ble Gujarat High Court in the case of Vijay Haishchan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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