9911796707
TMI Blog2024 (7) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... ). So the legal issue is taken up first. 3. Facts in brief are that the return of income was filed by the assessee on 31st October, 2005 declaring total income of Rs. 1,23,63,328/-. Thereafter, the assessment was completed u/s 143(3) of the Act on 24.12.2007 at an assessed income of Rs. 1,24,22,210/-. Thereafter, the AO has issued the impugned notice u/s 148 of the Act dated 18.03.2010 and thereafter re-opened the assessment of the assessee and framed the assessment u/s 144 of the Act on 10.12.2010, wherein he made an addition of Rs. 40 lakhs u/s 68 of the Act. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A), who was pleased to dismiss the same. Aggrieved the assessee is before us. 4. We have heard both the parties and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pement of income. Then only AO should record the necessary facts and reason for reopening the assessment i.e (the "reason to believe escapement of income") and thereafter issue notice u/s 148 of the Act. Once the AO satisfies the aforesaid requirement of law, then only he can invoke the jurisdiction of reopening an assessment and then only it can be held to be valid in the eyes of law. Further it has to be born in the mind that, when the validity of re-opening is tested, the reasons recorded by AO has to be tested on a standalone basis. Nothing can be added nor anything be deleted from the reasons so recorded. No inference can be allowed to be drawn on the basis of reasons not recorded by him. AO has to speak through the reasons so recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment is escaped assessment within the meaning of provision of Sec. 147 of the Income Tax Act, 1961, issue notice u/s 148 accordingly. 5. In this context, the Ld. AR drew our attention to page no. 4 of the assessment order, wherein the AO has extracted the information from office of the CIT(A)-37, Mumbai on the basis of which the AO has recorded the reasons for re-opening of assessment of the assessee and has alleged that the share transaction shown by the assessee in respect of shares of M/s Suryadeep Salt Refinery & Chemical Works Ltd entered into by the assessee on 01.12.2009 for value of Rs. 10 lakhs are found to be bogus (hawala transaction). According to the Ld. AR a perusal of the ibid information from the office of the CIT(A)-37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake, has departed from the facts [recorded in the reasons to reopen as recorded on 18.03.2010] and tried to improve the reasons to reopen by letter dated 22.11.2010 wherein the fact of assessee receiving share application money to the tune of Rs. 40 lakhs was stated. According to Ld. AR, this fact of receiving share application money from M/s Suryadeep was brought to the notice of AO by assessee while objecting to the reopening of assessment vide letter dated 26.10.2010 that is prior to AO changing the facts from the initial reasons recorded as on 18.03.2018. Therefore according to Ld. AR, the improvement made in the facts recorded in the reasons recorded to reopen the assessment on 18.03.2010 cannot be looked into as held by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions in respect of shares of M/s Suryadeep Salt Refinery & Chemical Works Ltd on 01.12.2009 for a value of Rs. 10 lakhs. Therefore, according to the AO, he had reason to believe that the transaction of Rs. 10 lakhs shown by the assessee in respect of shares of M/s Suryadeep Salt Refinery & Chemical Works Ltd is assessee's own concealed income utilized for non genuine transaction which escaped assessment. In this regard we find that assessee has not carried out any share transaction, wherein he has claimed to have earned any income from business income / capital gain (long term capital gain / short term capital gain / loss) in respect of shares of M/s Suryadeep Salt Refinery & Chemical Works Ltd and since we have to test the 'reasons re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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