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2021 (6) TMI 734 - AT - Income TaxReopening of assessment u/s 147 - assessee was one of the beneficiaries of accommodation entries by way of share application provided by third party - Assessee argued that addition confirmed on the basis of statement of third person namely Mukesh Chokshi - HELD THAT:- We find that after reopening u/s 147 notice u/s 148 dated 26.03.2014 was duly served upon the assessee on 29.03.2014. In response to notice under section 148, the assessee filed her reply stating therein that return filed originally on 29310.2007 may be treated as return in response to notice under section 148 - The assessee demanded reasons recorded. The reasons recorded were provided to the assessee on 29.05.2014. The assessee raised certain objections on 30.06.2014. The objection of assessee were disposed of in a speaking order on 23.09.2014. All these facts are not disputed by Assessee. After disposing of objection, AO proceeded to complete the reassessment. AO noted that despite repeated notices, the assessee neither furnished complete details not attended the proceedings before the AO - assessee vehemently argued that the reasons recorded are not valid as there was not sufficient material and specific information against the assessee and strongly relied upon the decision of Tribunal in Pratik Suryakant Shah [2017 (2) TMI 463 - ITAT AHMEDABAD] wherein Tribunal has not given finding on validity of reopening rather the assessee was granted relief on merit, so we will consider the said decision at the time of discussion on merit. Revenue relied on the decision in Aaspas Multimedia Ltd [2017 (6) TMI 557 - GUJARAT HIGH COURT] wherein held that where the reopening (reassessment) was made on the basis of information received from Pr.DIT (Investigation), and that the assessee was one of the beneficiaries of accommodation entries by way of share application provided by third party, the reopening was justified. Hon’ble Supreme Court in Raymond Woollen Mills Ltd., [1997 (12) TMI 12 - SUPREME COURT] held that at the time of reopening prima facie material on the basis of which Department could reopen the case is sufficient. Further, sufficiency or correctness of the material is not a thing to be considered at that stage. Considering the decision Hon’ble Jurisdictional High Court and of the Apex Court (supra) we are of the view that the ld.AO was having sufficient prima facie material for reopening, thus, the ground no.1 raised by assessee is dismissed. Addition u/s 68 - Bogus LTCG - We find that the facts of the case in hand are similar as of facts in Pratik Suryakant Shah [2017 (2) TMI 463 - ITAT AHMEDABAD] - We find that the AO made additions solely on the basis of information received from CCIT (investigation), and even without making any further investigation about the transaction shown by the assessee - in view of the above factual and legal discussions and respectfully following the decisions of coordinate bench of Tribunal as noted above we are of the view that the AO was not justified treating the long term capital gain as bogus solely on the basis of information, when the transaction is supported with sufficient evidence. The case law relied by revenue in Dhakeswari Cotton Mills Ltd.[1954 (10) TMI 12 - SUPREME COURT] is not helpful to the revenue qua the facts of the present case. In the said the Hon’ble Apex Court held that assessing officer in not fettered by the technical rule of evidence and pleadings and he is not entitled to accept the evidence just like court of law. At the same time the Hon’ble Court held that the AO (ITO) is not entitled to make pure guess and make the assessment without reference to any evidence or any or any material at all and that there must be something more than bare suspicious to support the assessment.
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