9911796707
TMI Blog2018 (12) TMI 1910X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt those objection of the assessee. CIT(A) observed that AO got information from the investigation wing, Mumbai indicating that the assessee was beneficiary of accommodation entry from entry operators. In our opinion, this is a general statement instead of considering exact nature of issue contested by the assessee. The assessee has contended that reopening was made on account of availing unsecured/unexplained loans, whereas the addition was made on account of bogus purchases. There is a vast difference in-between both these aspects. CIT(A) has not dealt with this aspect. Therefore, we are of the view meaning of expression and also employed in section 147 of the Act, reopening of the assessment in the present case is not sustainable. We allow this ground of appeal and quash the reassessment order - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... unsecured loans aggregating to ₹ 10,13,41,508/- from the following parties, -which are accommodation entries only and no real transaction has taken place. Sr. No. Name of the concern PAN no. Amount 1 M/s. Daksh Diamonds AURPS3696K 42934153/- 2 M/s Jewel Diam ABUPV3494J 24929147/- 3 M/s Kothari & Co. ABQPK7967H 33381111/- 4 M/s Little Diam AABFL1469R 970971- Total 101341508/-. A search and seizure operation u/s 132 of the Act was carried out in the case of Bhanwarlal Jain group, which is leading entry provider of Mumbai, The group is involved in providing accommodation entry of bogus unsecured loans and advances through benami concerns. The assesseee M/s Sanket Exports is one of the beneficiary and had received accommodation entries pertaining to bogus unsecured loan from the above mentioned parties aggregating to ₹ 10,13,41,508/- which are entries only and no real transaction had taken place. In view of the facts discussed above, it is observed that the assessee had received unsecured loans ofRsJ0,13,41,508/- from above mentioned parties, the genuine of which had not been proved by the assessee, the identity and creditworthiness had also not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on record copies of Hon'ble High Court decisions. 6. The ld.DR on the other hand relied upon the order of the ld.CIT(A) and contended that no doubt the AO has sought to reopen the assessment for assessing unexplained loans, but ultimately after reopening of the assessment, he came to know that these were bogus purchases and not of unsecured loans. The ld.AO has to form a prima facie opinion at the time reopening which can be changed subsequently. 7. We have duly considered rival contentions and gone through record carefully. A perusal of the reasons extracted (supra) would reveal that assessment was reopened on account of availment of unsecured loans from these concerns. The expression "and also" employed in section 147 of the Act has been considered by the three Hon'ble High Courts including Hon'ble jurisdictional High Court propounding therein that if an addition is being not made on an item, for which assessment is being reopened, then any other items found during the course of re-assessment as escaped income cannot be added. According to the Hon'ble Gujarat High Court expression "and also" means that if addition is being made on account of escaped income for which asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of which the Assessing Officer could have formed such belief. What is now sought to be stated by way of the order rejecting the objections as well as the affidavit-in-reply filed in response to the averments made in the petitions is that the formation of belief is based upon the information which is received from the DGIT (Inv.), Mumbai. It is settled legal position as held by a catena of decisions that the substratum for formation of belief that income liable to tax has escaped assessment has to form part of the reasons recorded. In the present case, the substratum for formation of belief, as indicated in the order rejecting the objections as well as the affidavit-in-reply, is the information given by the DGIT (Inv.), Mumbai, which got no relation with the reasons recorded, which are stated to be based upon the material available on record. Under the circumstances, the Assessing Officer, on the basis of the material on record, could not have formed belief that there was any escapement of income chargeable to tax so as to validly assume jurisdiction under section 147 of the Act. As held by the Supreme Court in a catena of decisions, the reasons recorded cannot be suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
