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2023 (10) TMI 1318 - ITAT DELHIReopening of assessment u/s 147 - Validity of approval granted u/s 151 - reason to believe - non filling of ROI - HELD THAT:- On going through the reasons recorded, we are of the view that they are replete with various factual misstatement/inaccuracies and silly mistakes. Though, AO has reopened the assessment for assessment year 2013-14, however, the heading of the reasons recorded refers to assessment year 2014-15. Even, the name of the assessee has been wrongly mentioned. In paragraph 3 of the reasons recorded, the AO has very clearly and categorically stated that, though, the assessee had filed TDS return u/s 194E and u/s 195 however, it didn’t file any return of income. As a result of which, genuineness of financial transaction business activities of the assessee could not be ascertained. In reasons recorded, AO has mentioned filing of return of income by M/s. Cricket Australia. Whereas, admitted facts are, the assessee has not filed any TDS returns whatsoever under Section 194E or section 195 of the Act. In fact, there is no reason for the assessee to file any TDS returns in India as it has not remitted any amount out of India to any other party. On the contrary, the assessment order itself would reveal, instead of making any payment, assessee had receipts from Taj Cricket Ltd., another non-resident entity. Thus, the reasons recorded by the Assessing Officer for reopening of assessment under Section 147 of the Act clearly reveals that the formation of belief has no live link or nexus with any tangible material available on record. Rather the reasons recorded are based on either non-existent or completely irrelevant facts. In fact, while disposing of the objections of the assessee questioning the validity of the reopening of the assessment, the Assessing Officer has clearly admitted/owned up various factual inaccuracies in the recorded reasons. Reasons recorded by the Assessing Officer certainly do not make out a case for reopening of assessment under Section 147 of the Act. Also without examining the facts on record, both the Additional CIT and CIT have granted approval under Section 151. Granting approval under Section 151 of the Act is not an empty formality. Approval has to be granted with caution and proper application of mind to the facts and material on record to prevent miscarriage of justice, as, reopening of assessment involves reopening of an already concluded assessment. Therefore, it should not be used as a tool for harassment to the assessee. Most unfortunate part in the entire exercise is the approach adopted by learned DRP. As could be seen from the observations of learned DRP, they have disposed of the objections of the assessee, being completely oblivious of the factual position, as, the DRP has referred to non-filing of TDS return and related transactions as the reasons for reopening. This, in our view, is totally unacceptable. When the Assessing Officer, while disposing of the objections of the assessee has admitted errors committed by him, it is surprising that learned DRP has fallen into the same error while referring to non-filing of TDS return and related transaction as the cause for reopening of assessment. Decided in favour of assessee.
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