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TMI Blog2023 (7) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... if at all ought to have been considered in those cases. There was no tangible material with the assessing officer, which would form a basis for the assessing officer for his 'reason to believe' that payments made to Mr. Vasudev Thacker as also to his son Mr. Nishant Thacker resulted in generation of cash, which ultimately found its way to the Petitioner. In the absence of any such specific information, which ought to have been reflected in the reasons recorded, it can be said that the jurisdictional requirements have not been fulfilled in the present case. While it may be true that as against the alleged payment of Rs. 153 crores paid to Mr. Vasudev Thacker, he admitted to have received only amount of Rs. 130 crores, which led to a disclosure by the Petitioner to the extent of Rs. 23 crores, yet the same cannot be made a basis for reopening. It needs to be pointed out that it is not the case of the Respondent-revenue that the entire amount, which had been received by Mr. Vasudev Thacker as also Mr. Nishant Thacker was never used for purchase of parcels of land for establishing the project, for which Special Purpose Vehicle companies were created. If that is so, one fails t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directors on 10 July 2009. In the course of the search, a statement was recorded on oath under Section 132 (4) of the Act, wherein the Petitioner states that a disclosure of approximately Rs. 23.27 crores was made representing the capital contribution in his personal capacity in the private limited company known as M/s India Tourist Heritage Village Pvt. Ltd. as also on account of purchase of furniture and repair of the property at Mangalore. (iv) It is stated that subsequently notice under Section 153A of the Act for six assessment years including assessment year 2009-10 was issued. Pursuant to which a return of income was filed under Section 153A declaring total income of Rs. 27,56,84,930/-, which after verification and scrutiny resulted in an Order under Section 143(3) read with section 153A of the Act on 30 December 2009. A notice under Section 148 of the Act dated 1 July 2014 was issued by the assessing officer seeking to reopen the assessment for the assessment year 2009-10 on the ground that income chargeable to tax had escaped assessment for the said assessment year 2009-10. 3. Reasons leading to the formation of the said belief were supplied to the Petitioner, which re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Total 7.65 Crs 4. From the above, it can be concluded that M/s Avash Logistics Park Pvt. Ltd. had issued cheques to Shri Vasudev Thakkar and Shri Nishant Thakkar and cash was received by the assessee. The assessee had however failed to disclose the said transactions of M/s YES Bank Ltd. pertaining to M/s Avash Logistics Park Pvt. Ltd. This omission on part of the assessee has resulted in under assessment of taxable income. In view of the above, I have reason to believe that income chargeable to tax of Rs. 7.65 crores has escaped assessment within the meaning of section 147 of the I.T. Act, 1961. Therefore, I am satisfied that this is a fit case to issue notice u/s 148 r.w.s. 147 of the I.T. Act, 1961. (Dr. UMESH C PANDE) Dy. Commissioner of Income Cent. Cir. 44, Mumbai 5. Objections to the reopening were submitted by the Petitioner, which were rejected by virtue of the Order dated 24 November 2015, hence, the present Petition. 6. Mr. Mistri, learned Senior Counsel appearing for the Petitioner urged that the notice impugned under Section 148 of the Act did not satisfy the jurisdictional condition for invoking Section 147 of the Act. It was stated that since the assessment was bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 December 2009 under Section 143(3) read with Section 153A of the Act and immediately after one day in the case of the Petitioner on 30 December 2009 under Section 143 (3) read with Section 153A of the Act. It was, therefore, urged that the basis for reopening the assessment as laid down in the reasons recorded regarding failure on the part of the Petitioner to furnish the bank account statements pertaining to a different entity was not a sustainable reason, based upon which the assessing officer could form his belief that income had escaped assessment or that there was any failure to disclose fully and truly the material facts. 8. Mr. Suresh Kumar, learned Counsel appearing for the Respondents, on the other hand, tried to justify the reopening on the ground that Mr. Vasudev Thacker, to whom the payments had been made by the Petitioner had been generating cash for the Petitioner and that it was based upon the statement made by him that the Petitioner has made disclosure of Rs. 23 crores for the assessment year 2009-10, which was also offered for taxation. Rs. 23 crores is stated to be a difference between Rs. 153 crores, which was allegedly paid to Mr. Vasudev Thacker and Rs. 130 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately found its way to the Petitioner. In the absence of any such specific information, which ought to have been reflected in the reasons recorded, it can be said that the jurisdictional requirements have not been fulfilled in the present case. 12. While it may be true that as against the alleged payment of Rs. 153 crores paid to Mr. Vasudev Thacker, he admitted to have received only amount of Rs. 130 crores, which led to a disclosure by the Petitioner to the extent of Rs. 23 crores, yet the same cannot be made a basis for reopening. It needs to be pointed out that it is not the case of the Respondent-revenue that the entire amount, which had been received by Mr. Vasudev Thacker as also Mr. Nishant Thacker was never used for purchase of parcels of land for establishing the project, for which Special Purpose Vehicle companies were created. If that is so, one fails to understand as to why only four entries recorded in the reasons recorded, were picked up by the assessing officer. 13. For the aforementioned reasons, we allow the Petition. The impugned notice under Section 148 of the Act dated 1 July 2014 and the Order dated 24 November 2015, rejecting the objections are set aside ..... 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