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2018 (11) TMI 1702 - AT - Income TaxValidity of Reopening of assessment u/s 147 - non independent application of mind by AO - Reassessment made without serving any notice u/s. 143(2) - Information regarding survey by Sales Tax Department has been solely used by the AO in letter and spirit for formation of belief of escapement of income - HELD THAT:- Information regarding survey by Sales Tax Department has been solely used by the Assessing Officer in letter and spirit for formation of belief of escapement of income without making any enquiry or application of mind, particularly when subsequent proceedings before various authorities of Sales Tax Department were available before issuance of notice u/s.148 and were got acknowledged to the AO before passing the reassessment order. In presence of these facts, the reasons recorded by the AO cannot, in any way, be said to be proper to form a belief of escapement of income, as the information so received was neither found well founded nor the AO made any efforts to make any verification or application of his mind on the same. The provisions of section 147 do not give unfettered powers to reopen the assessment and the AO is required to satisfy the pre-conditions as given in the said section, which is lacking in the present case. For this, there are several decisions of Hon’ble Courts, as also cited by the assessee before the ld. CIT(A). In view of this, the reassessment u/s. 147 cannot be said to be valid. Non-issuance of notice u/s. 143(2) before passing the reassessment - The issue of notice u/s. 143(2) is mandatory in the reassessment proceedings and its failure to do so, make the re-assessment as void. It is so held also in CWT vs. HUF of HH Late Shri J.M. Scindia [2008 (2) TMI 53 - BOMBAY HIGH COURT] . Similar view has been taken by Hon’ble Bombay High Court in another case CIT vs. Mundra Nanvati [2009 (7) TMI 1253 - BOMBAY HIGH COURT] . In view of this, the impugned re-assessment deserves to be held as void. Reopening of assessment u/s. 147/148 itself is held invalid on legal aspects of this case - Decided in favour of assessee
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