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TMI Blog2023 (10) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted and produced by the assessee. The order also indicates that notices u/s 133(6) of the Act were issued to all the investors who have paid the share capital and share premium to the assessee company towards allotment of 2,50,125 equity shares. After examining all these details and making a disallowance u/s 14A of the Act income assessed at Rs. NIL. We observe that thereafter based on the information received from DDIT (Inv.) it was found that the assessee is one of the beneficiaries of an alleged accommodation entry of Rs. 81 Lakh from M/s. Ashtavinayak Commodity Trade Pvt. Ltd. Based on this information re-assessment proceedings were carried out. AO did not make any addition for the alleged accommodation entry received from M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'Act') by ld. Commissioner of Income Tax (Appeal)-NFAC, Delhi [in short ld. 'CIT(A)'] dated 23.05.2023 arising out of the Assessment Order framed u/s 147 read with Section 143(3) of the Act dated 29.12.2018. 2. Registry has informed that the appeal is time barred by 9 days. Condonation application has been filed by the assessee. After perusing the same, we find force in the reasons mentioned therein and are satisfied that the assessee was prevented for reasonable cause in filing the instant appeal within statutory time limit. We, therefore, condone the delay and admit the appeal for adjudication. 3. The assessee is in appeal before this Tribunal raising the following grounds: "1. That under the facts and circumstances of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modity Trade Pvt. Ltd. but income of Rs. 52,68,500/- estimated in the nature of commission at the rate of 1% of total share capital along with premium received during the year. 5. Aggrieved, the assessee preferred appeal before ld. CIT(A) but failed to succeed. 6. Aggrieved, the assessee is now in appeal before this Tribunal. Ld. Counsel for the assessee has stated that the re-assessment proceedings u/s 147 of the Act are bad in law and needs to be quashed as addition has not been made on the issue for which case was re-opened and therefore, if the AO does not assess the income for which the reasons were recorded u/s 147 of the Act then he cannot assess other income u/s 147 of the Act. Reliance placed on the judgment of Hon'ble Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged accommodation entry received from M/s. Ashtavinayak Commodity Trade Pvt. Ltd. However, ld. AO made an addition for commission income at the rate of 1% of the total amount of share capital and share premium received during the year. The facts narrated above clearly indicates that ld. AO has not made any addition on the basis of the reasons for which the re-assessment proceedings were carried out and even though in the regular assessment proceedings complete details of the amount received towards share capital and share premium received were examined by way of issuing notice u/s 133(6) of the Act and no addition has been made by the AO, examining very same details in the re-assessment proceedings and making addition towards commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proceedings. However, if after issuing a notice under section 148, he accepted the contention of the assessee and holds that the income which he has initially formed a reason to believe had escaped assessment, has as a matter of fact not escaped assessment, it is not open to him independently to assess some other income. If he intends to do so, a fresh notice under section 148 would be necessary, the legality of which would be tested in the event of a challenge by the assessee. 17. We have approached the issue of interpretation that has arisen for decision in these appeals, both as a matter of first principle, based on the language used in section 147(1) and on the basis of the precedent on the subject. We agree with the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The above judgment of Hon'ble Jurisdictional High Court is squarely applicable on the facts of the instant case and since ld. AO did not make any addition for the reasons recorded and has made an addition for estimated commission income, such re-assessment proceedings become bad, illegal and deserves to be quashed. We, accordingly quash the re-assessment proceedings, set aside the order of ld. CIT(A) and allow ground no. 1 raised by the assessee on legal issue. 11. Ground no. 2 is raised on merits and the same is rendered infructuous as we have quashed the re-assessment proceedings. 12. Ground no. 3 is general in nature which needs no adjudication. 13. In the result, the appeal filed by the assessee is allowed. Kolkata, the 16th O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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