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2018 (2) TMI 1880 - AT - Income TaxReopening of assessment - addition in the present proceedings were addressed on behalf of the Central Excise Authority before CESTAT - HELD THAT:- In the facts of the present case admittedly no effort was made by the assessing officer to call for any record from the Central excise authority or look into any material before the formation of his belief . It is seen that infact whether anything was done for the formation of his belief itself is not evident. It is seen that from the date of receipt of the information up to the date of issuance of notice more than sufficient time was available to the assessing officer . In the facts for 2006-07 Assessment year as has been argued on behalf the assessee and we have noticed that this fact is not disputed by the Ld. Sr. DR that the information was already available to the assessing officer before the passing of the original order under section 143 (3). We note that on account of this fact the said action has possibly not been defended as vehemently by the Revenue also. As gone before the Settlement Commission in the preceding assessment year and subsequent years cannot be the basis for a decision in the years under challenge. The said fact at best can be a reason for arousing suspicion that all may not be correct in the facts of a particular assessee however the presumption that necessarily it must be a case where reopening can be said to be justified would require drawing of presumptions conjectures and surmises . In the facts of the present case admittedly no effort was made by the assessing officer to call for any record from the Central excise authority or look into any material before the formation of his belief . It is seen that infact whether anything was done for the formation of his belief itself is not evident. It is seen that from the date of receipt of the information up to the date of issuance of notice more than sufficient time was available to the assessing officer. In the facts for 2006-07 Assessment year as has been argued on behalf the assessee and we have noticed that this fact is not disputed by the Sr. DR that the information was already available to the assessing officer before the passing of the original order under section 143 (3). We note that on account of this fact the said action has possibly not been defended as vehemently by the Revenue also. In these peculiar facts and circumstances of the case we find that the appeal of the assessee both on the assumption of jurisdiction as well as on merits has to be allowed. Instead of having reason to believe it was only one conclusion after another which position of fact is borne out from the record in the facts of the present case also. Accordingly we hold that the appeals of the assessee on both counts for the detailed reasons given hereinabove have to be allowed. - Decided in favour of assessee.
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