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TMI Blog2021 (11) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... of recording of the reasons the assessment order for assessment year 2011-12 did not exist at all. In view of this, we do not have any hesitation in quashing the re-assessment proceedings. Thus, without going into the merits of the above, we quash the re-assessment proceedings and the order passed by the ld. Assessing Officer for assessment year 2007-08. Accordingly, the additional ground raised by the assessee is allowed. - ITA. Nos. 474, 531 & 532/Del/2017 - - - Dated:- 29-10-2021 - Ms. Suchitra Kamble, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Assessee : Shri Sandeep Sapra, Advocate; For the Department : Shri Vivek Vardhan, Sr. DR ORDER PER PRASHANT MAHARISHI, A.M. : 01. This is the bunch of three appeals concerning the one assessee involving similar grounds of appeal, argued together by both the parties and, therefore, these are disposed of, by this common order. In all these three appeals common issue in challenge is to action of the ld AO u/s 147 of the act based on assessment for Ay 2011-12 and addition u/s 68 of the act with respect to one party. 02. We first take up the appeal for AY 2007-08 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the deal was cancelled and the advance was refunded. As per copy of account of M/s PACL India Ltd. in books of accounts of assessee, she has received following amounts in different year in connection with aforesaid advance: F.Y. 2006-07 ₹ 10,00,000/- F.Y. 2007-08 ₹ 1,45,00,000/- F.Y. 2008-09 ₹ 79,00,000/- Out of this a sum of ₹ 50,00,000/- is said to have been paid back on 18.03.2010. In view of the above facts, I have reasons to believe that by reason of omission or failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment, income chargeable to tax amounting to ₹ 10,00,000/- has escaped assessment for which notice u/s 148 is required to be issued within the meaning of sec 147 of the IT Act, 1961 for the AY 2007-08. 06. The assessee submitted her reply-raising objection against re-opening of the assessment. On 16.02.2015, the Assessing Officer rejected the objections. 07. On the merits, it was found that assessee has received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. to finalise the deal and the consideration settled between her and the sellers of the, has been confirmed by M/s PACL India Ltd. iii. Simple assertion that appellant has acted on behalf of M/s PACL India Ltd. cannot be relied upon in the absence of any corroborative evidence. iv. From the copy of MOU, it is not clear what was the total consideration agreed upon for the purchase of properties in question, against which alleged amount was received by the assessee from M/s PACL India Ltd. v. There is no evidence on record through which it can be gathered that assessee entered into any negotiation with the sellers of the plot of land, which ultimately failed to materialize. vi. No evidence/details have been furnished by the assessee with regard to the cancellation clause of MOU entered into with between M/s PACL India Ltd. vii. In the absence of any corroborative documentary evidence, the submissions of the appellant that she has received advance from M/s PACL India Ltd. of ₹ 2.34 crore in three different financial years is not acceptable. As per normal business practice, advance for purchase of property is given only when there is clear intent that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes to the root of the matter. It is a jurisdictional issue and no further facts are required to be investigated. Therefore, it deserves to be admitted. Hence, we admit the same. 15. As the additional ground is re-opening of the assessment, we proceed to decide the same first. 16. The ld. AR submitted that the reasons for re-opening shows that during the assessment year 2011-12 assessee was found to have adjusted a sum of ₹ 40,00,000/- against advance received for a plot of land. In that assessment year assessee has claimed that she has received an advance of ₹ 2.34 crores from M/s. PACL India Ltd. Since the deal was cancelled, she has returned the advance money of ₹ 40,00,000/- back to that company. Assessing Officer held that as the assessee was not able to prove the creditworthiness of the above party, as she could not give any evidence, but merely stated that the deal was cancelled and the advances were refunded. The fact shows that as per the copy of the accounts of that creditor in the books of the assessee, assessee received ₹ 10,00,000/- in Financial Year 2006-07, ₹ 1,45,00,000/- in Financial Year 2007-08 and ₹ 79,00,000/- in Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The order of the co-ordinate bench in the case of lender was also submitted. In view of this, it was submitted that assessee has established the identity and creditworthiness of the above party. With respect to the genuineness of the above transaction it was stated that assessee entered into a Memorandum of Understanding with the above party which is placed at page Nos. 34 37 of the paper book. It was further submitted that merely because the copy of the agreement is notarized in U.P., it cannot be rejected. He submitted that merely because the advance against the property was received in three instances and subsequently as the deal could not happen, it cannot become a bogus transaction. Even otherwise out of the above sum received the assessee has provided the contract services to the creditor amounting to ₹ 2,37,95,818/- which was already offered on the credit side of the profit and loss account. Now it cannot be said that the advance received in earlier years was taxable as income of the assessee under Section 68 of the Act. Thus, he submitted that assessee has discharged her initial onus by showing identity, creditworthiness and Genuiness of the transaction therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re recorded on or before 27th of March 2014 i.e. the date on which notice under Section 148 of the Act is issued. In the reasons the fact is mentioned that assessee is assessed under Section 143(3) of the Act for assessment year 2011-12 at ₹ 7,35,76,210/-. However, such assessment is passed only on 31st of March, 2014, which is evident from the date of the order mentioned in the caption of the order and also the issue of demand notice issued along with that. Further, the person approving the reasons recorded is also the same officer i.e. JCIT, Range 32, New Delhi, who passed the assessment order in the case of the assessee for assessment year 2011-12. Thus, from the above it is apparent that the approving authority who passed assessment order for assessment year 2011-12 on 31.03.2014 approved the reasons recorded by the Assessing Officer i.e. ACIT, Circle 32(1), New Delhi, on or before 27th of March, 2014 stating that assessment order for assessment year 2011-12 has been passed is clearly a back dated reason recorded by the Assessing Officer and approved by the lower authorities. Such reasons do not have any legs to stand and further the approving authority also did not apply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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