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TMI Blog2021 (4) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 conducted on one Mr. Pradeep Jindal as alleged by Ld. AO (search dated 18.11.2015) so only available legit to Ld. AO was provision of section 153C of the Act usage of provision of section 148 of void ab initio and is error of jurisdiction accordingly orders of Ld. AO and Ld. CIT-A may please be quashed. 1.2 That on the facts and in the circumstances of the case and in law, ld. CIT-A erred in sustaining the order passed by Ld. AO u/s. 147/143(3) without appreciating that "rubber stamp" reasons in present case (page 1 & 2 of assessment order) are based on borrowed satisfaction and are without independent application of mind as in reasons recorded a) firstly it is wrongly and incorrectly stated that first time assessment is proposed to be made in proforma of reasons recorded and in reasons also only reference is made to return of income leaving aside regular assessment framed in assessee's case for subject period vide order u/s. 143(3) dated 08.02.2013 which shows patent and gross non application of mind on part of reasons recording authority and approving authority which have perfunctorily exercised extraordinary power of reopening in extant case, b) secondly reasons are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case and in law, ld. CIT-A erred in sustaining the order passed by Ld. AO u/s. 147/143(3) as so called incriminating evidence found from search action only proceedings u/s. 153C ought to initiated and action u/s. 148 cannot be made on that CIT-A order para 7, 21 to 23). 1.7 That on the facts and in the circumstances of the law, ld. CIT-A erred in sustaining the order passed by 147/143(3) when notice u/s. 143(2) is issued on same return u/s. 148 is filed showing blatant non application of mind & bias on part of ld. assessing officer. 2. That on the facts and in the circumstances of the case and in law, ld. CIT-A erred in sustaining the order passed by Ld. AO u/s. 147/143(3) without appreciating that provisions of section 68 cannot apply to subject share application money/share capital merely on sole and mere basis of investigation wing directions/dictates without independent examination etc, so addition made by Ld. AO (Rs. 60 lacs) and confirmed by CIT-A in impugned order deserves to be deleted. 2.1 That on the facts and in the circumstances of the case and in law, ld. CIT-A erred in sustaining the order passed by Ld. AO 147/143(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries amounting of Rs. 25,00,000/- from M/s. Instant Travel & Tour Ltd. on 18.02.2010, Rs. 15,00,000/- and Rs. 10,00,000/- from M/s. Hajima Resorts Ltd. on 23.02.2010 & 25.02.2010 respectively and Rs. 10,00,000/- from M/s. Reena Oil Industry Pvt. Ltd. on 16.03.2010. During the F.Y. 2009-10 the assessee has obtained Rs. 60,00,000/- as accommodation entries from the above mentioned concerns and the entry provider Sh. Pradeep Kumar Jindal Managing Director of the said companies has admitted the fact before the Income Tax Department. 2. It is found that the assessee filed its return of income for the A.Y. 2010-11 on 05.09.2010 declaring income of Rs. 14,37,730/-. Hence, there is reason to believe that the assessee has earned income of Rs. 60,00,000/- from undisclosed sources by taking the bogus credit entries in his bank account. Therefore, the said unexplained income of Rs. 60,00,000/- and any other income that subsequently come to notice has escaped assessment for the A.Y. 2010-11 by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for computing correct income and filing his return of income for the A.Y. 2010-11. 3. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only if there was a failure on the part of the assessee to fully and truly disclose all material facts necessary. The assessee has disclosed the fact of receipt of Rs. 60,00,000/- towards the share capital in the regular return filed which has been scrutinized u/s. 143(3). In the reasons recorded for reopening, the Assessing Officer has not mentioned anything with regard to failure on the part of the assessee to disclose all the material facts. This matter has been examined by the Hon'ble Apex Court in the case of NDTV Ltd. Vs DCIT, by the Hon'ble Jurisdiction High Court in the case of BPTP Ltd. Vs PCIT, Haryana Acrylic Manufacturing Company Vs CIT. The Coordinate bench of Tribunal in the case of RMP Holdings Pvt. Ltd. relied on judgments of the Hon'ble Courts and held that the Assessing Officer has to specifically record reasons with regard to failure of the assessee to disclose fully and truly all material facts. 8. The relevant portion of the said orders are as under: "IN THE INCOME TAXAPPELLA TE TRIBUNAL DELHI BENCH: F: NEW DELHI (Through Virtual Court Hearing) RMP Holdings (P) Ltd., ITA No. 7243/Del/2019 Assessment Year: 2011-12 Date of Pronouncement: 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Hon'ble Delhi High Court in the case of Haryana Acrylic Manufacturing Company vs. CIT, 308 ITR 38, order dated 1st July, 2020, has held as under: "19. Examining the proviso [set out above], we find that no action can be taken under section 147 after the expiry of four years from the end of the relevant assessment year if the fallowing conditions are satisfied; (a) an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year; and (b) unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assesses: (i) to make a return under section 139 or in response to a notice Issued under subsection (1) of section 142 or section 148; or (ii) to disclose fully and truly all material facts necessary for Ms assessment for that assessment year. Condition (a) is admittedly satisfied inasmuch as the original assessment was completed under section 143(3) of the said Act, Condition (b) deals with a special kind of escapement of income chargeable to tax. The escapement must arise out of the failure on the part of the assessee to make a return under section 139 or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Reiterating our viewpoint we hold that the notice dated 29-3-2004 under section 148 based on the recorded reasons as supplied to the petitioner as well as the consequent order dated 2-3-2005 are without jurisdiction as no action under section 147 could be taken beyond the four year period in the circumstances narrated above." 39. The various other decisions relied on by the ld. Counsel also support his case to the proposition that where there is no allegation in the reasons recorded that there is failure on the part of the assesses to disclose fully and truly all material facts necessary for assessment ids 147 of the Act, the notice issued u/s. 148 after a period of four years from the end of the relevant assessment year in a case where original assessment has been framed u/s. 143(3) of the Act is illegal and invalid since proceedings are without jurisdiction. 40. Since, in the instant case, the original assessment was framed u/s. 143(3) on 10th March, 2014 determining the income at Rs. 20,06,714/- as against the returned loss of Rs. 20,53,019/- and wherein the issue of unsecured loan creditors was duly considered and accepted on the basis of various supporting documents file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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