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2020 (6) TMI 8 - AT - Income TaxReopening of assessment u/s 147 - No notice issued by the Jurisdictional AO - Non disposal of assessee's objection - addition u/s 68 - HELD THAT:- Reasons recorded by the AO that the assessee was beneficiary by way of CCM in derivative transactions was factually incorrect. This shows non application of mind by the I.T.O to the information received by the AO from the ADIT (Inv.), Unit-1(3), Ahmedabad. The law requires that the Assessing Officer prima facie applies his mind to the information received, prior to forming a reasonable belief, that income subject to tax has escaped assessment and thereafter record reasons. When reasons are based on wrong facts, which were not verified, then it is a clear case of non-application of mind by the Assessing Officer to the material received. Thus, there is no direct nexus between the tangible material received and the formation of belief that income had escaped assessment and hence the reopening of assessment is bad in law.Admittedly, the Assessing Officer has not disposed off these objections by way of a speaking order, as mandated by the Hon’ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] before the completion of assessment. No notice of reopening u/s 148 of the Act was given by the Assessing Officer having jurisdiction over the assessee. No reasons were recorded by the jurisdiction so that he believes that income subject to tax has escaped assessment. The notice issued u/s 148 of the Act was by an AO who had no jurisdiction. Hence it is null and void. It is not a legal notice in the eyes of law. Thus, on this count also, the assessment order passed u/s 143(3) of the Act on 13/12/2016, is bad in law. Addition u/s 68 - AO has not discharged the onus that lay on the revenue to prove that the assessee had earned the income in question. The letter from NSE states the facts which are not controverted by the Assessing Officer. When the NSE states that the assessee has not earned income from derivative transactions, the question of making addition on this ground does not arise. Thus, we delete the addition made. - Decided in favour of assessee. Order being pronounced after ninety (90) days of hearing - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See DCIT vs. JSW Limited [2020 (5) TMI 359 - ITAT MUMBAI]
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