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TMI Blog2025 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... own income of the assessee routed through the said broker Shri Jai Bhagwan Agrawal (though there is no such averment made in the reasons recorded, even then, such an information may be treated a trigger point for making further investigations but that information alone cannot be said to be sufficient information for reopening of the assessment. AO in this case, blindly acted on the information received from Investigation Wing and reopened the assessment, even though in the said information it has been mentioned that the assessee had received loan and there is no allegation that the said loan was a sham transaction to route the undisclosed income of the assessee. Assessee having denied of receipt of any cash loan as alleged by the Assessing Officer, the burden shifted on the Assessing Officer to confront the assessee with any such evidence showing that the assessee had entered into any such transaction. Admittedly, in this case, no such cash was found from the possession of the assessee. There is no name mentioned by the Assessing Officer of any lender, who allegedly gave loan to the assessee, only the name of the broker has been mentioned, that in itself is totally a vague allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs vide issue of notice u/s 148 and the consequent order u/s 147 was pursuant to the alleged search u/s 132 on the person stated therein in the. Impugned order u/s 147 and as such the impugned proceedings u/s 147 is illegal since the proceedings should have been u/s 153C and in view of the facts and in the circumstances impugned order u/s 148A(b), order u/s 148A(d), notice u/s 148 and consequent order u/s 147 is bad in law and it may be held accordingly. 2. Without prejudice to Ground No. 1 above, Hon'ble Rajasthan High Court in Tirupati Construction Company v. ITOI CBDT [Civil Writ Petition No 176511 2022 and Civil Writ Petition No 1752312022 dt 21.3.2024] [Also Shyam Sunder Khandelwal v. ACIT- D.B. Civil WP No 18363 /2019 dt. 19.3.2024] has held that in these circumstances only proceedings u/s 153C can be taken up and not u/s 147 and in view of the facts and in the circumstances it may be held accordingly. 3. Without prejudice to Grounds No.1 & 2 above, order u/s 148 was issued by ACIT, Circle -32, Kolkata (J.A.O.) whereas in terms of sec. 151A of Income-tax Act, 1961 such notice u/s 148 could have been issued by AO, NFAC only and who failed to issue the impugned notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complete description of the issue: In this instant case, the DDIT (Inv.), Unit-2(4), Kolkata vide letter dated 21.02.2022 has provided an information to the concerned Jurisdictional Assessing Officer that Credible information has been received from the statement of Sri Jai Bhagawan Agarwal before the Investigation Wing that the assessee is engaged in a cash transaction and received cash loan to the tune of Rs. 11.05 crore through the broker namely Sri Jai Bhagawan Agarwal. Thereafter, the concerned jurisdictional officer, after following due procedure as provided by Section 148A of the Act, found it a fit case for issuance of notice u/s.148 of the Act and a notice u/s 148 of the Act dated 29.03.2022 for the A.Y. 2018-19 was issued and served upon the assessee. The assessee has filed return in compliance to the notice u/s 148 on 22.04.2022 and accordingly a notice u/s 143(2) has been issued on 04.11.2022." 5. Inviting our attention to the above reproduced contents of the assessment order, the Ld. Counsel has submitted that it is apparent from record that in this case, the Assessing Officer has reopened the assessment solely on the basis of report of the Investigation Wing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient information for reopening of the assessment. The Assessing Officer in this case, blindly acted on the information received from Investigation Wing and reopened the assessment, even though in the said information it has been mentioned that the assessee had received loan and there is no allegation that the said loan was a sham transaction to route the undisclosed income of the assessee. 7. The assessee in this case has categorically stated that he neither knows any person named Shri Jai Bhagwan Agrawal and nor he has received any alleged cash loan of Rs.11.05 crore. The assessee having denied of receipt of any cash loan as alleged by the Assessing Officer, the burden shifted on the Assessing Officer to confront the assessee with any such evidence showing that the assessee had entered into any such transaction. Admittedly, in this case, no such cash was found from the possession of the assessee. There is no name mentioned by the Assessing Officer of any lender, who allegedly gave loan to the assessee, only the name of the broker has been mentioned, that in itself is totally a vague allegation without any corroborating evidence. 8. The Ld. Counsel for the assessee has invited o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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