TMI Blog2016 (3) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... essed u/s 143(1) of the Act only and no scrutiny assessment was completed before issue of notice u/s 148 of the Act, thus, the ratio of the said decision is not applicable of the fact of the case of the assessee. We also agree with the contention of ld Sr DR that sufficiency or correctness of the material cannot be considered at the stage of issuing notice under section 148 of the Act as held by the Hon’ble Supreme Court in the case of the Raymond Woolen Mills Ltd Vs ITO (1997 (12) TMI 12 - SUPREME Court ).Thus, we uphold the finding of the Ld. CIT(A) in impugned order that notice issued by the AO under section 148 of the Act was in accordance to law - Decided against assessee - ITA No. 3332/Del/2011, ITA No. 4864/Del/2013 - - - Dated:- 9-3-2016 - Shri C. M. Garg, Judicial Member And Shri O. P. Kant, Accountant Member For the Petitioner : Shri D. Ostwal, C.A For the Respondent : Smt. Anima Barnwal, Sr. DR ORDER Per O. P. Kant, A. M. These two appeals of the assessee are directed against the two separate orders of the Ld. CIT(A)-XI, New Delhi, dated 25/01/2011 and 14/06/2013 . The first appeal is against sustainence of findings made in the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order sustaining the additions and demand would require to be set aside and quashed to that extent. 7. The appellant craves leave to raise further/ additional grounds and documents and file paper book before the hearing of the appeal and prays for the appeal to be allowed after hearing both side. 3. The facts in brief are that the assessee filed its original return of income on 31.10.2002 declaring an income of ₹ 2,170/- and the case was processed u/s 143(1) of the Act. Subsequently, on receipt of information from the Director of Income Tax (Investigation), New Delhi that the assessee was a beneficiary of accommodation entries / bogus transaction from two parties namely M/s Arpit Sales Corporation M/s. Harish Kumar Sons (HUF), the Assessing Officer (AO) re-opened the case of the assessee by way of issuing a notice u/s 148 of the Act on 20.03.2009. The assessee was provided a copy of information received from the Director of Income Tax (Investigation) and then the assessee was asked to prove the genuineness of the amount received from the said two parties. As noticed by the ld. CIT(A), the assessee was granted several opportunities by the AO but no documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustification for re-opening assessment :- The first issue to be considered is whether the AO could lawfully assume jurisdiction to reopen the assessment u/s 147 of the Act. Since the initial assessment was made u/s 143(1) of the Act, the proviso to section 147 of the Act for such re-opening would not come into play for the period under consideration. 3.1 It is not necessary to refer to the submission made by the Ld. AR again on this issue. Since the law is well settled. It cannot be disputed that the assessment in such case [in case of 143(3) cannot be reopened on a mere change of opinion on the same set of facts and that there should be failure on the part of the appellant in disclosing fully and truly material facts necessary for the assessment. It is further well-settled that for the purposes for deciding whether the jurisdiction has been properly assumed or not, what is necessary is that there should be some material for prima-facie formation of the belief that there has been escapement of income on account of omission or failure on the part of the assessee to disclose fully or truly all the material facts necessary for the assessment. The belief, which was formed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 3,00,000/- from HKSH ASC. The conclusion from the aforesaid fact in the recorded reason that the amount was not disclosed and consequently income has escaped assessment and such decision of the AO cannot be faulted. Accordingly, the contention that there was no material for formation of the belief as postulated u/s 147 to re-open the assessment cannot be sustained. The initiation of proceeding of relevant assessment is accordingly upheld. 3.5 In the assessments for the relevant year, the appellant has never disclosed the amount and offered the same for taxation. The recorded reason however is that the appellant has introduced unaccounted money in its books and hence the same should come under the ambit of income under unexplained cash credit. 3.6 The allegation of the appellant (as revealed from grounds of appeal) that there was no positive information in the possession of the AO is not correct. It is a fact that the AO has received information from DIT (Investigation), New Delhi and after receipt of the information it was his satisfaction that the income has escaped asstt. And hence the submission of the appellant on this ground is not sustainable. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash credit u/s 68 of the Act by the AO and upheld by the ld. CIT(A). 10. Before us the ld. AR submitted that all the documents in respect of identity of creditors, genuineness of the transaction and creditworthiness of the creditors were duly filed by the creditors themselves in response to the notice issued u/s 133(6) of the Act issued to them and the ld. AO did not examine those evidences. He also submitted that the Assessing Officer has accepted the genuineness of the credits from the same parties in assessment years subsequent to the assessment year in consideration. Whereas on the other hand, the ld. Sr DR relying on the orders of the lower authorities, submitted that the assessee not only failed to produce the required evidences before the ld. AO but also could not produce before the ld. CIT as well as and thus, the addition sustained by the CIT(A) should be upheld. 11. We have heard the rival submission and perused the material available on record. We find that the CIT(A) in para 5.16 of his order has observed as under :- .. The details of the creditor is not known at the present point of time. The appellant cannot be absolved of its liab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
