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SHRI DEVENDRA KUMAR Versus INCOME TAX OFFICER, WARD-1, BULANDSHAHAR

2016 (1) TMI 28 - ITAT DELHI

Reopening of assessment - Held that:- Reason recorded for issuing notice under section 148 clearly indicates that the reopening done without even an allegation that the assessee has failed in its statutory obligation to disclose fully and truly the material facts necessary for the computation of income and as such cannot be held to be valid in law and need to be cancelled on this primary ground only. There is not even an allegation in the reasons that assessee has failed to disclose fully and tr .....

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28-9-2015 - SHRI H.S. SIDHU, JUDICIAL MEMBER For The Assessee : Shri Ved Jain, Advocate For The Department : S h. Sudhiranjan Senapati, Sr. DR ORDER PER H.S. SIDHU : JM This Appeal filed by the Assessee emanate out of the Order dated 06.8.2014 passed by the Ld. CIT(A), Meerut relevant to assessment year 2007-08. 2. The following grounds have been raised in the Assessee s Appeal:- 1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals)[ .....

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facts and in law in confirming the order of the AO rejecting the contention of the assessee that the reason recorded for reopening of the assessment are bad in law and as such the reopening of the assessment is illegal and liable to be quashed so. (iii) On the facts and circumstances of the case, the reopening is bad in law in the absence of live nexus in the reasons recorded and the facts of the case. 3(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts an .....

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ndra Kumar Yadav. (ii) That the above said addition has been confirmed by misinterpreting the facts and arbitrarily rejecting the explanation and evidences submitted by the appellant in support of its contention. 5. That the appellant craves leave to add, amend or alter any of the grounds of appeal. 3. The brief facts of the case are that Assessee filed return of income on 27.12.2007 declaring Net Income of ₹ 1,03,794/-. The notice u/s. 148 was issued to the Assessee on 10.8.2010 which was .....

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resentative of the assessee and Mr. Sanjeev Kumar, Brother of the assessee attended the proceedings from time to time and furnished the necessary details and information called for. The case was also discussed with them in detail. Thereafter, the AO completed the assessment at income of ₹ 7,53,794/- vide his order dated 20.9.2011 passed u/s 143(3) of the I.T. Act, 1961. 4. Against the above order dated 20.9.2011, assessee filed an appeal before the Ld. CIT(A), who vide impugned order dated .....

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or issuing notice under section 148 clearly indicates that the reopening done without even an allegation that the assessee has failed in its statutory obligation to disclose fully and truly the material facts necessary for the computation of income and as such cannot be held to be valid in law and need to be cancelled on this primary ground only. There is not even an allegation in the reasons that assessee has failed to disclose fully and truly all material facts for the compaution of its income .....

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orded by the AO. I further find that in the instant case, the assessee had made full and true disclosure during the original assessment proceedings with regard to issues in dispute. Hence, I am of the view that the reopening had been done merely on change of opinion in as much as that in the original assessment made u/s. 143(3) of the I.T. Act, the AO had apparently applied his mind and had raised queries with regard to the items which have been identified by the AO in this notice u/s. 147/148 o .....

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20 ITR 561 and Commissioner of Income Tax vs. Usha International Ltd. [2012] 348 ITR 485 (Delhi) [Full Bench] the reassessment is invalid on the part of the AO and also on confirming the same on the part of the Ld. CIT(A). 7.1 I also find that the facts and circumstances of the present case are similar and identical to that of the decision of the Tribunal in the case of Minda Industries Ltd. vs. DCIT (Supra) vide order dated 19.6.2015. For the sake of convenience, the relevant para 14 to 15 at p .....

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nvestigation Wing that the assessee was engaged in receiving the bogus entries, the assessment was reopened. The AO identified 3 parties and issued summons u/s 131 of the Act which returned back with the remarks of the Postal Authority left without address . The AO made the addition of ₹ 25,00,000/- by observing that that the loans received in the said amount by the assessee were on account of bogus entries. In the present case, it is an admitted fact that the reassessment proceedings were .....

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d 09.12.2005 furnished the list of inter-corporate loan alongwith copy of return of income and financial statement. Therefore, it cannot be said that the AO did not make the inquiries relating to the loans or the assessee did not furnish the requisite details of the loans. In the present case, the AO after examining the aforesaid details framed the assessment u/s 143(3) of the Act vide order dated 30.03.2006, therefore, the reopening on the basis of the same issue which was examined in the cours .....

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31, 1989. A perusal of clause 7.2 of the said circular makes it clear that the amendments had been carried out only with a view to allay fears that the omission of the expression reason to believe from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on a mere change of opinion. It is, therefore, evident that even according to the Central Board of Direct Taxes a mere change of opinion cannot form the basis for reopening a completed assessment. A statute .....

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ubsection (1) of section 143 or sub-section (3) of section 143. When a regular order of assessment is passed in terms of the sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of section 114 of the Indian Evidence Act, 1872, judicial and official acts have been regularly performed. If it be held that an order which has been passed pur .....

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Hon ble Supreme Court in the case of CIT Vs Kelvinator of India Ltd. 320 ITR 561. 15. In the present case, also the AO while framing the original assessment, specifically, asked the assessee to furnish the details of the unsecured loans and the assessee gave the details by disclosing the name of the persons from whom loans were received and also furnished their PAN nos. alongwith the requisite details in the form of affidavit from the Directors of the lending companies, balance sheet & prof .....

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