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TMI Blog2021 (5) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... R.K. Panda, Accountant Member For the Assessee : Shri V.K. Sabharwal, Advocate For the Revenue : Shri Farath Khan, Sr. DR ORDER This appeal filed by the assessee is directed against the order dated 3rd January, 2019 of the CIT(A)-15, Delhi, relating to assessment year 2010-11. 2. Facts of the case, in brief, are that the assessee is an individual and engaged in the business of civil works contracts. In this case, information was available on ITD System regarding cash deposits of ₹ 14,52,000/- in IDBI Bank account. The AO, on the ground that no return for the year under consideration was filed, reopened the assessment u/s 147 after obtaining necessary administrative approval of the PCIT, Delhi-15, New Delhi after recording the following reasons:- As per information available with the undersigned, the assessee has entered into transaction of cash deposit amounting to ₹ 14,52,000/- in various banks during the year. Since the assessee has not filed his/her ITR for the A.Y. 2010-11, the source of cash deposit in saving bank account amounting to ₹ 14,52,000/- remained unexplained. Therefore I have reason to believe that the income of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Act 1961 on 22.12.2017 is perverse to the law and to the facts of the case, because of nonreceipt / service of the primary / mandatory notice claimed to be issued on 08.08.2017 and fixed for hearing on 21.08.2017, which the Ld. CIT(A) has mentioned that the same was issued only in Para-4.1 of his order and not adjudicated about its service thereof. 2. That the orders passed u/s/ 144/147 of the Income Tax Act 1961 are further not tenable as legal under the law and to the facts of the case because of getting / granting the approval u/s 151 by the Pr. CIT, New Delhi in a mechanical manner without application of his own independent satisfaction thereupon to the information provided. 3. That the order passed u/s 144/147 of the Act was further illegal under the law and to the facts of the case, because the reasons on which the provision of law was invoked u/s 147 of the .Act ceased to survive while passing the order on 22.12.2017, as the additions have been made on ad hoc disallowance of expenses to the extent of 25%. 4. That the Assessing Officer and Ld, CIT(A) failed to appreciate while passing the orders, that the appellant was in possession of proper books of accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs as per law, according to which the ITR has been filed. 10.That while passing the orders by the Assessing Officer, he has not taken into consideration the facts and figures as already available with him pertaining to earlier years regarding the ratio of turnover, gross profit, net profit etc, deduced, derived and declared therefrom. 11.That charging of interest u/s 234B and initiating penalty proceedings u/s 271(1 )(b) and u/s 271(1 )(c) of the Act alongwith u/s 271F, are further illegal as against the law and to the facts of the case. 12.That the appellant assails his right to amend, alter or change any grounds of appeal at any time even during the course of hearing of this instant appeal. 5. The ld. counsel for the assessee strongly challenged the order of the AO and the CIT(A). He submitted that the reopening of the assessment was bad in law since the premises of such reopening was that the assessee has not filed the return of income whereas the AO in the assessment order himself has noted that the assessee has filed the return of income, since he has made the addition to the returned income of ₹ 1,58,905/- as income from business declared by the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of the assessee shows that the assessee has filed the return of income for the impugned assessment year on 30th March, 2011, vide receipt No.0000014393. Thus, it is seen that the AO has recorded a wrong fact in his reasons that the assessee has not filed the return of income. Further, a perusal of the approval given by the Jt. Commissioner shows that he has given approval by observing as under as per clause 12 of the proforma:- Yes, I am satisfied with the reasons recorded by the Assessing Officer that it is a fit case for issue of notice u/s 148 of the IT Act, 1961. 8. Similarly, the PCIT, while giving his approval has observed as under:- I have gone through the reasons recorded by the authorities below. After going through the same, I am satisfied that the present case is a fit case for issue of notice u/s 148 of the IT Act. 9. A perusal of the above shows that the superior authorities have not applied their mind and had given approval in a mechanical manner. 9.1 It has been held in various decisions that reopening of the assessment on wrong set of facts makes such reopening a nullity. The Hon ble Delhi High Court in the case of PCIT vs. RMG Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome escaped assessment . Sections 148 is supplementary and complimentary to Section 147. Sub-section (2) of Section 148 mandates reasons for issuance of notice by the Assessing Officer and sub-section (1) thereof mandates service of notice to the assessee before the Assessing Officer proceeds to assess, reassess or recompute escaped income. Section 147 mandates recording of reasons to believe by the Assessing Officer that the income chargeable to tax has escaped assessment. All these conditions are required to be fulfilled to assess or reassess the escaped income chargeable to tax. As per explanation (3) if during the course of these proceedings the Assessing Officer comes to conclusion that some items have escaped assessment, then notwithstanding that those items were not included in the reasons to believe as recorded for initiation of the proceedings and the notice, he would be competent to make assessment of those items. However, the legislature could not be presumed to have intended to give blanket powers to the Assessing Officer that on assuming jurisdiction under Section 147 regarding assessment or reassessment of escaped income, he would keep on making roving inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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