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TMI Blog2022 (9) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to tax has escaped assessment. This reason must be on concrete facts. In the present case in hand, it is observed that the Assessing Officer was of the view that the assessee has failed to file its return of income for the impugned year under section 139(1), which, in itself was an incorrect fact. We would place our reliance on the decision of the Hon ble Apex Court in the case of NRA Iron Steel Pvt Ltd [ 2019 (3) TMI 323 - SUPREME COURT] wherein the assessee has discharged the onus by furnishing details regarding the identity, creditworthiness and genuineness of the impugned transaction, the onus shifts to the Revenue. In the present case in hand, the Assessing Officer has failed to prove beyond doubt that the impugned transaction pertaining to the unsecured loan given by M/s Seven Stars Gems Pvt Ltd was only an accommodation entry. We are of the considered opinion that the Assessing Officer has reopened the assessment only on the basis of suspicion and not on reason to believe , we thereby allow this ground of appeal filed by the assessee. - ITA No. 212/MUM/2019 - - - Dated:- 29-8-2022 - Shri Prashant Maharshi (Accountant Member) And Kavitha Rajagopal (Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report prepared in the case of M/s. Lotus/Kamdhenu/Green Valley Group as a result of search action u/s. 132 conducted on 09.10.2014. That the assessee has received unsecured loans of Rs.65.00,000/- in FY 20088-09 relevant to A Y 2009- 10 from M/s. Seven Star Gems Pvt. Ltd. 3. M/s. Seven Star Gems Pvt. Ltd. is a company operated by Sh. Praveen Jain. Investigation wing of IT Department has conducted search and seizure action in the case of Praveen Kumar Jain Group. During the course of search it is established that Shri Praveen Kumar Jain indulged in providing accommodation entries like bogus purchases, sales, unsecured loans. Share capital through the companies operated by him which includes M/s. Seven Star Gems Pvt. Ltd. 4. From the appraisal report it is revealed that the assessee has obtained accommodation entry of unsecured loan of Rs.65,00,OOO/- during the period relevant to AY 2009-10. The detail of information regarding accommodation entry is as follows: Sr.No. Name of the Bogus Entry Transaction Amount 1. Seven Star Gems Pvt Ltd Unsecured Loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of Apex Court in the case of ACIT vs Rajesh Jhaveri Stock Broker Pvt Ltd 291 ITR 500 (SC). The assessee is in appeal before us as against the order of the Ld.CIT(A). 4. The Ld.AR for the assessee contended that the Assessing Officer has erroneously stated that the assessee did not file its return of income for A.Y. 2009-10 in his reasons for reopening the assessee s case which was brought to our notice by the Ld.AR by referring to page 34 of the paper book filed by the assessee. The Ld.AR stated that the assessee has filed its return of income for the impugned year dated 30/09/2009, the copy of which was said to have been furnished before the lower authorities. The Ld.AR further stated that the impugned addition of Rs.65,00,000/- as unexplained loan has already been duly disclosed in the balance-sheet filed by the assessee. The Ld.AR stated that the notice under section 148 dated 28/03/2012 was served upon the assessee after the expiry of 4 years from the end of the relevant assessment year which is bad in law unless any income chargeable to tax has escaped assessment for the impugned assessment year by reason of failure on the part of the assessee to make a return under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. It is a serious flaw which renders the order a nullity 4 Tin Box Co vs CIT [(2001) 116 Taxman 491(SC)] Assessment order must be made after assessee has been given a reasonable opportunity of being heard. 5 H.K. Pujara Builders vs Add CIT-21(1) [ITA No.2034/Mum/2014](ITAT Mumbai) Where the appellant has discharged the initial onus placed upon it, addition u/s 68 cannot be made merely because interest had not been charged by the lenders 7. From the above decisions, we infer that the Assessing Officer has the jurisdiction to reopen an assessment only when he has reason to believe that income chargeable to tax has escaped assessment. This reason must be on concrete facts. In the present case in hand, it is observed that the Assessing Officer was of the view that the assessee has failed to file its return of income for the impugned year under section 139(1), which, in itself was an incorrect fact. We would like to place our reliance on the decision of the Hon ble Bombay High Court in the case of Ankita A Choksey vs ITO (Writ Petition No.3344 of 2018)(Bom H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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