TMI Blog2013 (9) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... cies or defects have been noted by the AO in respect of such details/ documents - Contention of the AO that the shares of the companies, which were private limited were not traceable in the stock exchange did not have conclusive evidentially value – Decided against the Revenue. - Income Tax Appeal No. - 244 of 2013 - - - Dated:- 17-9-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : Shambhu Chopra ORDER We have heard Shri Shambhu Chopra, learned counsel for the income tax department. In this appeal under Section 260A of the Income Tax Act, 1961 arises against the order dated 7.6.2013 passed by the Income Tax Appellate Tribunal in ITA No.99/Lkw/2011 for the assessment year 1998-99 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment?" The Tribunal held after quoting notice under Section 148 of the Act that no case has been made out for demonstrating any failure of disclosure by the assessee. The reopening of assessment was thus vitiated. The Tribunal relied upon Hindustan Lever Ltd. v. R.B. Wadkar, 268 ITR 332 in which it was held that the reasons are required to be read as they are recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons and no inference can be drawn on the basis of reasons not recorded. It is for the A.O. to disclose and open his mind through the reasons recorded by him. In the present case in the notice under Section 148 dated 21.3.2005 it was stated by the A.O. as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and found that the A.O. made addition on the basis of certain suspicion without verifying required facts and circumstances of the transaction under question. The findings recorded by CIT (A) in paragraph 8 of the order is quoted as below:- "I have considered the facts and circumstances of the case, the discussion of the AO in the assessment order, submissions and arguments of the appellant. From the fact of the case and detail of proceedings during the assessment, it is clear that the AO has made the addition on the basis of certain suspicion and without verifying the required facts and circumstances of the transaction under question. While on the other hand, it is on record that the assessee has filed supporting documents by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut more than 6 years if brokers could not be contacted by the AO, it was not enough to disregard the transaction. Thus, for the above reasons and the arguments and submission of the appellant pointing out the fact that the AO has wrongly presumed that - (a) "shares of M/s Nak Securities Ltd. remained the same from 1997 to 2001" and also that - (b) "Stock Brokers service tax was made applicable w.e.f. 01.07.1994 vide notification No.1/1994 hence service tax has been correctly charged/ realized", I find that there is no basis for making the addition of Rs.18,20,269/- and Rs.17,21,450/-." In the present case a notice under Section 148 was issued on 28.3.2005 in response to which assessee has filed return of income on 29.4.2005. A survey was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to a disclosure within the meaning of the foregoing proviso. He further submits that Clause (c) (i) of the Explanation 2 provides that where an assessment has been made but income chargeable to tax has been underassessed. It is submitted that in the present case both the conditions in Explanation 1 and Explanation 2 (c) (i) are satisfied and thus the Tribunal committed error in confirming the order of CIT (A) and interfering with the order of the A.O. Shri Shambhu Chopra has relied upon the judgment of the Bombay High Court in Indian Hume Pipe Co. Ltd. v. Asstt. Commissioner of Income Tax Ors., (2012) 348 ITR 439 (Bom) and of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 years and to conduct enquiries and take statements to find out whether the income has escaped assessment. We do not find that any material was discovered by A.O, prior to issuing notice under Section 148 nor any such material was discovered from any other source, which may have given him reason to believe that the income has escaped income. The A.O. based his findings on the same material, which were disclosed in the return after making some more enquiries and which was not permissible as the limitation of 4 years had expired. We do not find any error of law in the order of the Tribunal. We also do not find that any question of law arises for consideration in this appeal. The income tax appeal is dismissed. - - TaxTMI - TMITax - I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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