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TMI Blog1985 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... iving the remand report on various aspects affecting the quantum of income assessed. 2. The assessee is partnership firm and was originally assessed on 16th March, 1974 in the status of URF. The firm is engaged in the business of real estate and the assessment was completed under s. 143(3). Subsequently proceedings under s. 147(a) of the Act were commenced on following details as stated in the assessment order completed under s. 144 r/w s. 147(a) of the Act. "Afterwards, on investigation, it was seen that the assessee company shown cash credits in the names shown below: Rs. 32,000 in the name of Shir Muljibhai Kodabhai. Rs. 20,000 Ambaben Muljibhai and Shri Shankerbhai. Rs. 30,000 Bhuderbhai. These credits appeared in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment originally made under s. 144 was preferred by the assessee where reopening could be challenged in appeal proceedings, it was submitted that under the New Act the same could be legally challenged and there was a direct decision in the case of Surajmal Ganeshram vs. CIT (1979) 120 ITR 715 (Cal). On the validity of the notice reliance was placed on the decision reported in the case of ITO vs. Madnani Engineering Works Ltd. (1979) 12 CTR (SC) 144 : (1979) 118 ITR 1 (SC) and in the case of Ahmedabad Cotton Mfg. Co. Ltd. vs. Union of India (1974) 95 ITR 639 (Guj). Besides the reasons recorded by the Department on the basis of which jurisdiction under s. 147 was assumed were actually wrong because it was stated in the reasons of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee should succeed especially in view of the recent amendment having been given retrospective effect only from asst. yr. 1972-73 and since the assessment year under consideration was asst. yr. 1971-72 the levy of interest under s. 217 be deleted. 5. The ld. departmental representative expressing his inability because of no records having been received, relied upon the order of the CIT (A). Reliance was also placed on the decision in the case of Jawahar Wollen Textile Mills vs. CIT (1973) 92 ITR 511 (P H) on the aspect of investigation of the cash credits having been made after the assessment was completed. 6. We have considered the submissions and have gone through the relevant materials to which our attention was drawn. On legality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and, therefore, the reopening based on this erroneous factual aspect is illegal and, therefore, reassessment made is void ab initio and without jurisdiction. 6.2. The CIT(A) in para 6 on dealing with the facts, states that presumably at the time of original assessment, the existence of cash credits in the books was taken note of. At that time, obviously cash credits were taken at face value and they were accepted without any probe. Subsequently, some investigations were made and statements of the persons concerned were recorded but nothing is brought by way of evidence to suggest that cash credits were accepted without any probe. Nothing is evident from the contents of the assessment order completed under s. 147(a) of the Act that orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty under s. 271(1)(c)/274 of the IT Act wherein the conduct of the assessee, viewed on the basis of actions, intentions and the omissions on the part of the assessee over a period was taken as the base for levy of penalty in respect of a bogus entry in the books of the assessee treated as income from undisclosed sources. 7. Since we have dealt with the legality aspect of the reopening of the assessment and have decided the case in favour of the assessee we shall not deal with the matters and grounds affecting the quantum of the assessment in respect of the income assessed or tax computed, for the time being. The same shall be considered in future if the need arises. 8. We, therefore, set aside the orders of the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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