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TMI Blog2015 (11) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under:- "DIT (lnv) during the course of investigation in the case of Mukesh Gupta group along with its dose confidants Shri Rajan .Jassai and Shri Surinder Pal Singh found that the group have operated multiple accounts in various branches to plough back unaccounted black money for the purpose of business or for personal needs such as purchase of assets etc. in the form of gifts, share application money loans etc. During the course of investigations by the DIT(lnv) it was discovered that the assesses who have unaccounted money (hereinafter called as entry takers or beneficiaries) and want to introduce the same in the books of accounts without paying tax approach another person (entry operator) and hand over cash (plus commission) and take cheques/DDS/POs. The cash is deposited by the entry operator in a bank account either in his own name or in the name of relative/friends or other person hired by him, for the purpose of opening bank account. The entry operator thereafter issues cheque/DD/PO in the name of beneficiary from the same account (in which the cash is deposited) or another account in which funds are transferred through clearing in two or more stages. The benefici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the assessee has filed an application under Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 challenging the assumption of jurisdiction u/s 147 of the Act by AO on two counts viz. (a) That sanction for issuance of notice u/s 148 of the Act was not taken from the appropriate authority and (b) That the AO had not applied his mind independently to the information received from the investigation wing before the issuance of notice u/s 148 of the Act. With the consent of both the parties we proceed to adjudicate on the issue of assumption of jurisdiction u/s 147 of the Act raised by the assessee under Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 first. 7. Ld. Counsel for the assessee drew our attention towards reasons recorded and submitted that the AO has mechanically proceeded to assume jurisdiction u/s 147 of the Act and has accordingly issued notice u/s 148 of the Act. Ld. AR contended that the AO simply proceeded on information of the investigation wing without analysing and applying his mind towards the nature of transaction to establish that the impugned transactions were in the nature of accommodation entries. He drew our attention to the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. G&G Pharma India Ltd. in which the Hon'ble Jurisdictional High Court has recapitulated the jurisdictional requirement for reopening of the assessment u/s 147/148 of the Act as under:- "9. The Court at the outset proposes to recapitulate the jurisdictional requirement for reopening of the assessment under Section 147/148 of the Act by referring to two decisions of the Supreme Court. In Chhugamal Rajpal v. SP Chaliha (1971) 79 ITR 603, the Supreme Court was dealing with a case where the AO had received certain communications from the Commissioner of Income Tax showing that the alleged creditors of the Assessee were "namelenders and the transactions are bogus." The AO came to the conclusion that there were reasons to believe that income of the Assessee had escaped assessment. The Supreme Court disagreed and observed that the AO "had not even come to a prima facie conclusion that the transactions to which he referred were not genuine transactions. He appeared to have had only a vague felling that they may be '"bogus transactions'." It was further explained by the Supreme Court that: "Before issuing a notice under S. 148, the ITO must have either reasons to believe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 147(a) as it stood prior to 1st April 1989 required the AO to have a reason to believe that (a) the income of the Assessee has escaped assessment and (b) that such escapement is by reason of omission or failure on the part of the Assessee to file a return or to disclose fully and truly all material facts necessary for his assessment for that year. After the Amendment, only one singular requirement is to be fulfilled under Section 147(a) and that is, that the AO has reason to believe that income of an Assessee has escaped assessment. However, the proviso to Section 147 of the Act provides a complete bar for reopening an assessment, which has been made under Section 143(3) of the Act, after the expiry of four years. However, this proscription is not applicable where the income of an Assessee has escaped assessment on account of failure on the part of the Assessee to make a return or to disclose fully and truly all material facts necessary for his assessment. Thus, in order to reopen an assessment which is beyond the period of four years from the end of the relevant assessment year, the condition that there has been a failure on the part of the Assessee to truly and fully disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken place. While the CIT may have proceeded on the basis that the reopening of the assessment was valid, this does not satisfy the requirement of law that prior to the reopening of the assessment, the AO has to, applying his mind to the materials, conclude that he has reason to believe that income of the assessee has escaped assessment. Unless that basic jurisdictional requirement is satisfied, a post mortem exercise of analysing materials produced subsequent to the reopening will not rescue an inherently defective reopening order from invalidity." 10. In the present case also it is seen that the AO has merely relied on the report of the investigation wing but it is apparent that he has not applied his mind to the materials which were before him. In our view, without forming a prima facie opinion on the basis of only the report of the Investigation Wing of the Income Tax Department, it was not legal for the AO to have simply concluded that he has reason to believe that income chargeable to tax has escaped assessment. Unless the basic jurisdictional requirement is satisfied, a post mortem exercise of analysing materials produced subsequent to the reopening will not rescue an inhere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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