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TMI Blog2018 (7) TMI 2202X X X X Extracts X X X X X X X X Extracts X X X X ..... 97/JP/2016 vide order dated 10.04.2018 on the issue of validity of reopening of the assessment in paras 4 and 5 as under:- "4. We have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee filed his return of income for the year under consideration on 30.06.2003. The AO reopen the assessment by recording the reasons as under:- " it has come to the notice of the undersigned that the assessee Sh. Shambhu Dayal Saraf S/o Sh. Madan Lal Saraf C/o M/s Saraf & Co. C.A. 1st Floor Shop No. 216-217 Kishanpole Bazar, Jaipur has made transactions worth Rs. 5,60,845/- with MKM finsec. through two DD of Rs. 2,50,000/-, dated 12.09.2002 and Rs. 3,10,845/- dated 18.09.2002. In the return for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while passing the impugned order has rejected the contention of the assessee against the validity of reopening however, this particular fact whether the assessee has disclosed this amount in the return of income or not has escaped consideration by the Tribunal while deciding the issue. Hence, we are of the considered view that there is a mistake apparent on record in the impugned order and consequently we recall the impugned order of the Tribunal for fresh hearing and adjudication of the matter. The registry is directed to fix the appeal of the assessee for fresh hearing and adjudication in regular course. The parties to be informed about the next date of hearing." 2. Thus, this appeal of the assessee is again listed for hearing and adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered under deeming provision of sec. 147 of I.T. Act 7. That the learned CIT Appeals erred in confirming the impugned order of learned I.T.O. without considering the preliminary objection regarding jurisdiction U/s 147 of I.T. Act such there is no escapement of income as per record." 3. The ld. AR of the assessee has submitted that the assessee filed his return of income for the year under consideration on 30.06.2003 declaring total income of Rs. 1,19,1220/-. This return was processed U/s 143(1)(a) of the Act. Subsequently, the AO reopened the assessment by issuing notice U/s 148 of the IT Act dated 19.03.2010 to assess the income on account of two DDs of Rs. 2,50,000/- and Rs. 3,10,845 total amounting to Rs. 5,60,845/- as received fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed by the assessee in the return of income. In support of his contention, he has relied upon the decision of Hon'ble Jurisdictional High Court in case of CIT vs. Shri Ram Singh 306 ITR 343. 4. On the other hand, the ld. DR has submitted that the Assessing officer has reopened the assessment when he received information about the transaction worth Rs. 5,60,845/- with M/s MKM Finsec (P.) Ltd. through two DDs as mentioned by the AO in the reasons recorded and these transactions have not been separately declared by the assessee in the return of income or computation of income annexed return of income. Therefore, at the time of reopening prima facie the Assessing Officer was having reasons based on the information that the income of Rs. 5,60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of Rs. 5,60,845/- on account of two DDs received by us from M/s MKM Finsec (P.) Ltd. Thus, it is clear from the reasons recorded by the AO for reopening of the assessment that there was no reason of bogus entries or accommodation transactions to form the believe that the income assessable to tax has escaped assessment. The validity of reopening and sufficiency of reasons has to be tested only on the basis of the reasons recorded by the AO and nothing more can be taken into consideration which might have been detected during the course of enquiry or investigation conducted by the AO in the reassessment proceedings. Once, the assessee has explained the fact which is available on record as part of the return of income that the said amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geable to tax, which, according to his "reason to believe", had escaped assessment for any assessment year, did not escape assessment, then, the mere fact, that the AO entertained a reason to believe, albeit even a genuine reason to believe, would not continue to vest him with the jurisdiction, to subject to tax, any other income, chargeable to tax, which the AO may find to have escaped assessment, and which may come to his notice subsequently, in the course of proceedings under s. 147. 30. It is a different story that for such other income, the AO may have recourse to such other remedies, as may be available to him under law, but then, once it is found, that the income, regarding which he had "reason to believe" to have escaped assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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