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TMI Blog2021 (8) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the AO which was not available during the course of original assessment order. Otherwise the ld. Assessing Officer does not have power to re-open the case of the assessee on same material, when the original assessment was made under Section 143(3) of the Act on the same set of documents. DR also could not show us that what was the fresh tangible material coming into the possession of the Assessing Officer after completion of the assessment - CIT (Appeals) has incorrectly upheld the action of the ld. Assessing Officer in re-opening of the assessment.- Decided in favour of assessee. - ITA No. 5025/Del/2015 CO No. 149/Del/2018 - - - Dated:- 30-7-2021 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER Assessee by : Shri Kapil Goel, Advocate Department by : Shri Ajay Kumar, Sr. D. R. ORDER PER PRASHANT MAHARISHI, A. M. 1. This appeal is filed by the ld. ACIT, Circle 22 (1), New Delhi, against the order passed by the Commissioner of Income Tax (Appeals) 8, New Delhi, dated 25.05.2015 for assessment year 2009-10 raising following grounds of appeal:- 1. On the facts and in the circumstances of the case and in law, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT-A erred in sustaining reopening action of Ld AO u/s 148 which is patently based on non application of mind as evident from reasons mentioned in assessment order from pages 1 to3 when it is admitted fact that some documents as mentioned are undated and cannot be held to be of subject AY 2009-10 and at best could be only assessed in survey period AY 2010-11 refer CIT-A finding at page 32 which is sufficient to knock off the entire reopening action. 3. That on the facts and in the circumstances of case and in law, the Ld CIT-A erred in sustaining reopening action of Ld AO u/s 148 which is patently based on non application of mind as evident from reasons mentioned in assessment order from pages 1 to 3 as assessee's explanation on records qua stated documents as mentioned in reasons itself has not been objectively overruled as per law in reasons recorded. 4. That on the facts and in the circumstances of case and in law, the Ld CIT-A erred in sustaining reopening action of Ld AO u/s 148 without legally valid service of notice u/s 143(2) which is sufficient to quash the assessment orders passed by Ld AO and Ld CIT-A and restore original assessment order. 3. Brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered and thereafter regular assessment under Section 143(3) of the Act was passed on 26.03.2013 where no adverse inferences were taken on loose documents. He submitted that as the reopening has been made on the basis of the survey documents which were available with the AO prior to framing assessment order under Section 143(3) of the Act, those documents were considered by the AO and thereafter regular assessment was framed under Section 143(3) of the Act. He, therefore, submitted that there is lack of fresh tangible material coming in to possession of ld AO after framing of the assessment order and, therefore, the re-opening by the AO is bad in law. He relied upon the decision of the Hon ble Supreme Court in the case of Kelvinator reported at 320 ITR 561. He further stated that the documents on which reopening is initiated are dumb documents and, therefore, the reasons recorded by the Assessing Officer are without application of mind and, therefore, reopening is bad in law, placing reliance on the decision of the hon ble Supreme Court in 103 ITR 437. 11. Challenging the objection of the assessee raised under Section 147 of the Act, the ld. DR vehemently supported the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o us. 5 Does not pertain to us. 6 Does not pertain to us. 7 Does not pertain to us. 8 Does not pertain to us. The assessee has further filed a letter dated 12/05/2013 stating as under: On checking and verification of these documents we have the opinion that we may not be able to give reply of some handwritten documents (Party No. AO8 Annexure No. A-2, Page No. 4 5) being part of the seized documents as their belongingness and their author not clear and not in our knowledge. The civil construction work was discontinued by our company with M/s Ramaprastha Builders P. Ltd. since financial year 2009-10. As per the seized documents a total sum of ₹ 13 lacs is appearing as being received by some person or its author in cash. Therefore, just to buy a peace of mind and to avoid any future litigation with department, we are considering/treating this unexplainable amount as our civil construction business turnover and offering suo moto tax on this receipt's profit (which may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of original assessment. The ld. Assessing Officer accepted the explanation of the assessee, passed the original assessment order under Section 143(3) of the Act. On the basis of the above, it is abundantly clear that the ld. Assessing Officer applied his mind on the same set of documents which were examined by him during the course of original assessment proceedings. Therefore it is evident that there is absence of any tangible material coming into his possession of the LD AO after passing of the original assessment order. It is imperative to re-open the case of the assessee that there has to be fresh tangible material in the possession of the Assessing Officer which was not available during the course of original assessment order. Otherwise the ld. Assessing Officer does not have power to re-open the case of the assessee on same material, when the original assessment was made under Section 143(3) of the Act on the same set of documents. The ld. DR also could not show us that what was the fresh tangible material coming into the possession of the Assessing Officer after completion of the assessment. In view of this, case of the assessee is squarely covered in its favour by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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