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2018 (3) TMI 1948 - AT - Income TaxReopening of assessment u/s 147 - Addition u/s 68 - notice issued beyond 4 years from the end of the assessment years - HELD THAT:- We are unable to understand when in the reasons so recorded, the A.O. himself is stating that the accommodation entries from the various parties mentioned above, which did not find place in the assessee’s books of account, therefore, he has reasons to believe that the income chargeable tax has escaped assessment. When the entries are not found in the books of the assessee how the same could be made basis for reopening the completed assessment. In our understanding of the law, veracity of the notice u/s. 148 of the Act has to be tested on the basis of the notice itself The mandate of First proviso to section 147 is that income that has to be taxed must have escaped assessment by reasons of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. There is not even a whisper in the reasons recorded for the reopening of the assessee relating to non disclosure of full and true facts by the assessee - See HARYANA ACRYLIC MANUFACTURING COMPANY [2008 (11) TMI 2 - DELHI HIGH COURT] Coming back to the reasons recorded for reopening of the assessment as mentioned elsewhere, it can be seen that there is no independent application of mind by the A.O. It appears that the A.O. has borrowed the investigation made by the Investigation Wing under the DIT (Investigation), New Delhi - we have no hesitation to hold that the notice issued u/s. 148 of the Act is without jurisdiction and the same is set aside. Assessment u/s 153A - Coming to the merits of the case as mentioned elsewhere, there is no dispute that no incriminating material has been found at the time of search and therefore it is now settled proposition of law that no assessment u/s. 153A of the Act can be framed in the absence of any incriminating material found at the time of search. For this proposition, we draw support from the decision of the Hon’ble High Court of Delhi in the case of Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT] - Decided in favour of assessee.
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