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TMI Blog2015 (12) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground 2 assessee assails reopening resorted by the AO for the impugned assessment year. Appeal of the assessee had earlier travelled up to the Tribunal and this Tribunal considering the assessee's request to admit additional ground assailing the jurisdiction assumed u/s.148 of the Act had remitted it back to the CIT (A) for considering it to be a fresh ground. CIT (A) had disposed of this ground in favour of the Revenue, which is now assailed before us by the assessee. 03. Facts apropos are that during the course of assessment proceedings of assessee's husband Shri. Govindappa, it was found by the AO that the said Shri. Govindappa had shown a loan of Rs. 10.77 lakhs as received from the assessee during the relevant previous year. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der cultivation for each crop, assessee could furnish no evidence regarding sale of the produce. AO resorted to his own estimation of the agricultural income for these years based on market rates of the agricultural commodities for the period 1991-92 to 2000-01, given by Agricultural Marketing Committee, Channapatna. He reworked the net agricultural income of the assessee at Rs. 9,55213/- for F. Ys. 1991-92 to 1999- 00 and after deducting therefrom various expenditure and outflow due to loans advanced by the assessee during these years came to a conclusion that what could have been available with the assessee for giving a loan during the relevant previous year to her husband was only Rs. 4,60,248/-. Thus out of the sum of Rs. 10,77,000/- sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that a reopening for further investigation, to find source of an investment was not permissible in law. According to him assessee was only an agriculturist and her only source of income was agricultural income. Simply based on surmises the reopening was resorted to. Reliance was also placed on the Hon'ble Apex Court in the case of CIT v. P. K. Noorjahan [237 ITR 570]. 06. Per contra, Ld. DR strongly supporting the order of CIT (A) submitted that judgment of jurisdictional High Court in the case of C. M. Mahadeva (supra) did not apply on facts here. According to him in the said case concerned assessee had filed a return u/s.143(1) of the Act and the reassessment proceedings were initiated after processing of such return. As against this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO is having ample powers to verify the correctness of the confirmation. In our opinion, the first course of action that should ordinarily be resorted to, is not issue of a notice u/s.148 of the Act to the concerned creditor. AO never issued summons u/s.131 of the Act to the concerned creditor and obtained a statement on oath. If from such statement he could gather sufficient material to come to a conclusion that there was escapement of income, or even in a case creditor failed to attend the summons, the AO could have resorted to a reopening. No doubt assessee here had not filed a return of income at all. Explanation 2 to Section 147 of the Act deals with a situation where there has been no return of income filed. Explanation 2 is repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of income for the advance of Rs. 10.77 lakhs given by the assessee to her husband. There is nothing here whatsoever mentioned regarding any lacunae in the confirmation filed by the assessee in the course of her husband's assessment proceedings or regarding any investigation done by the AO that could bring out something which would show an escapement of income. Argument of the Ld. DR is that in a case where assessee has not filed a return at all, the reasons that are to be given for reopening should not be seen with the same eyes as in the case of an assessee who had filed a return of income earlier. Even if we accept this contention, reasons given by the Ld. AO for issue of notice u/s.148 of the Act, does not give even a hint of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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