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2024 (5) TMI 227 - GUJARAT HIGH COURTValidity of reopening of assessment - reasons to believe - survey conducted in Jammu & Kashmir Bank u/s. 133A and only because the petitioner assessee has transacted with the said bank made a total of transaction of inward and outward remittance, thus concluded that the income has escaped the assessment - material in form of Survey report of the Jammu & Kashmir Bank that there was a mismatch of the remittance amount as the bank has calculated two remittance amount one on the notional basis and other on the actual realization basis and it is not known as to which amount is taken for accounting purpose by the assessee - HELD THAT:- When the Jammu & Kashmir Bank has clearly stated in the reply that there are two different entries captured in the statement of account and remittance sheet have two different types of rate one is notional and one is actually realized and statement of account submitted to the petitioner, the same is duly recorded in the books of accounts reflecting the actual realized rate of foreign exchange. In such circumstances, on application of the basic accounting principles, when the petitioner has produced all the material before the assessing officer during the course of the regular assessment, AO could not have formed a prima facie belief that there is escapement of income in view of the material available on record in form of details of bank accounts along with the bank statement for the month of March-2016 of the Jammu & Kashmir Bank, details of exchange, difference/ net loss in foreign exchange transaction and translations along with the copies of the ledger account of the exchange difference, details of expenditure in foreign currency, copy of Form-15CA filed by the petitioner-company, wherein all details of foreign remittance are reflected. When such record was already available with the respondent Assessing Officer, which was produced by the petitioner assessee during the original assessment proceedings, he ought to have considered the same and applied his mind with regard to the material made available by the survey action u/s. 133 of the Act, which was conducted on Jammu & Kashmir Bank coupled with the explanation tendered by the Jammu & Kashmir Bank reflected in the reasons recorded. The impugned notice issued u/s. 148 of the Act is nothing but amounts to change of opinion on the part of the respondent assessing officer and he has issued the impugned notice only on the borrowed satisfaction without there being any fresh tangible material to come to the prima facie conclusion that the income has escaped assessment. Thus the impugned show cause notices u/s. 148 of the Act are hereby quashed and set aside. Assessee appeal allowed.
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