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2021 (11) TMI 852 - AT - Income TaxReopening of assessment u/s 147 - addition account of unexplained investment - HELD THAT:- There is no reference to any subsequent facts, i.e., subsequent to assessment of March, 2016, or information coming to the possession of the AO, even if available on record though discovered later, i.e., after 10/3/2016, giving rise to the reason to believe escapement aforesaid, and which is a condition precedent for the issue of notice u/s. 148 and assumption of jurisdiction u/s. 147. The reasons recorded u/s. 148(2) refer to the AO’s letter dated 22/2/2016 and the assessee’s reply thereto, both events occurring prior to 10/3/2016, i.e., during the course of the original assessment proceedings. Further, the AO’s comments to the audit objection make it amply clear that the assessee’s reply to his letter dated 22/2/2016 was accepted by the AO. The Revenue has not shown the said acceptance to be infirm, much less perverse, even as the course available in the former case would be a revision u/s. 263. It is also not the Revenue’s case that the AO’s opinion accepting the assessee’s reply was perverse, i.e., a view no person properly instructed on facts and in law could take, as where the said reply is irrelevant or does not meet the letter dated 22/2/2016 by the AO. I am conscious, while so discussing, that there is no challenge to the notice u/s. 148(1) by the assessee, which aspect, i.e., the validity of the reasons recorded u/s. 148(2) or of the assumption of jurisdiction u/s. 147, must, therefore, be regarded as having attained finality. The present discussion only seeks to emphasize the non-sustainability of the argument advanced by the ld. Sr. DR inasmuch as there has been, both factually or legally, no omission to consider the assessee’s explanation qua the impugned investment during the original assessment proceedings, nor the AO’s view in accepting the said explanation perverse, in which either case the AO’s objection to the audit objection would be rendered invalid in law. And the Revenues’ subsequent action in issuing notice u/s. 148 interpreted, even as argued by the ld. Sr. DR, as an acceptance by the Revenue of the revenue audit objection. Needless to add, the Revenue has not shown me any counter by the RAP to the AO’s comments dated 13/4/2016, meeting his objection, so as to exhibit thereby that the audit objection would survive the AO’s comments, i.e., obtain despite the same, which (comments) would thus stand rendered inconsequential - Decided against revenue.
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