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M/s BANKE BIHARI PROPERTIES PVT. LTD. Versus ITO, WARD-4 (1) , NEW DELHI

2016 (4) TMI 1142 - ITAT DELHI

Reopening of assessment - reasons to believe - Held that:- AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Del .....

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eafter, the AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. Keeping in view of the facts and circumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. - Decided in favour of assessee - ITA No. .....

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ot accepting the assessee's submission that, in any case, and in any view of matter, the notice u/s 147 is barred by limitation and the notice I order are based on incorrect facts in violation of principal of natural justice. 2. That having regard to facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO by treating the amount of ₹ 3,50,00,000/- as unexplained credit, which is purely based upon the presumption and incorrect fac .....

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pportunity of cross examine to Shri Tarun Goyal (whose statement was taken by the investigation wing) and other directors of the other companies had not been provided during the course of assessment proceeding. 5. That having regard to facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in treating ₹ 3,50,00,000/- as unexplained credit, because of the assessee failed to present the loan creditors before the Ld. A.O or failed to .....

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desired documents / details of the assessee, after so many request. 7. That having regard to facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO, who have failed to apply his mind while passing the assessment order. He failed to gather the information of loan creditors, which is available with investigation wing. 8. That in any case and in any view of the matter, action of Ld. CIT (A) in confirming of action of Ld. AO in making additi .....

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.2.14 of the order) "the Appellant is a Private Limited Company, where the money have been received through Private Placement and not through Public Issue. So being a Private Limited Company, the contributors must have been personally known to the Appellant." This is factually incorrect, since those are the Loan Creditors of the Appellant company, and not the Shareholders. Again, the amount was not received by Appellant Company through Private Placement for allotment of shares , but it .....

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and relied only on the information of third party, i.e Investigating Department of 1. Tax without going with the details of the case. That the Investigating Department must have provided the names, addresses, and PAN No. of the Loan creditors, who could have summoned. That the Ld. AO must have the details of the Bank Accounts of the Loan Creditors. They could have summoned the required information from Banks of the Loan Creditors. That the Ld. AO fails to apply his mind and also Ld. CIT(A) faile .....

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s and circumstances of the case and in law, the notice u/s 148 issued in this case is bad-in-law, without jurisdiction and barred by limitation and accordingly, the notice u/s 148 issued and also thy assessment order passed on the foundation of such notice are liable to be quashed. On the facts and circumstances of the case and in law, the Commissioner of Income Tax (A) erred in not quashing the notice u/s 148 and the assessment order passed by the assessing officer. b) On the facts and circumst .....

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and in law, the alleged reasons given by the A.O. for making the addition of ₹ 3,50,00,000/- on account of alleged unexplained credits and the reasons given by CIT(A) for confirming the said additions are erroneous and not sustainable both on facts and in law and accordingly the addition of ₹ 3,50,00,000/- on account of alleged unexplained credits is liable to be deleted. The appellant craves leave to add one or more ground of appeal or to alter / modify the existing ground before o .....

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ditional grounds. 5. We have heard both parties on the admission of additional grounds, as aforesaid, we are of the view that in the interest of justice, the additional grounds raised by the assessee mentioned in para no. 2 at page no. 5 of this order are purely legal and do not require fresh facts which is to be investigated and go to the root of the matter. In the interest of justice, we admit the additional ground raised by the assessee, in view of the decision of the Hon ble Supreme Court of .....

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g the period relevant to AY 2006-07. The findings of the Investigation Wing of the Department, were brought to the knowledge of all the Assessing Officers alongwith the data collected in the course of investigation. The modus operandi adopted by such beneficiaries of the services of accommodation entry providers was detected and the assessee was found to be the accommodation entry from such entry operator controlled by Sh. Tarun Goyal during the FY 2005-06 relevant to AY 2006-07 as per the follo .....

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6. Banke Bihari Properties Pvt. Ltd. Rishabh Shoes P. Ltd. 25,00,000/- 7. Banke Bihari Properties Pvt. Ltd. Sadguru Finman Pvt. Ltd. 20,00,000/- 8. Banke Bihari Properties Pvt. Ltd. Tauru Finman Pvt. 15,00,000/- 9. Banke Bihari Properties Pvt. Ltd. Tejasvi Investment Pvt. Ltd. 25,00,000/- 10. Banke Bihari Properties Pvt. Ltd. Thar Steels Pvt. Ltd. 15,00,000/- 11. Banke Bihari Properties Pvt. Ltd. Unique Capital Pvt. Ltd. 25,00,000/- 2,90,00,000/- Accordingly, notice u/s. 148 of the I.T. Act, 196 .....

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.2013. Thereafter, the AR of the assessee filed objections on the reasons recorded on 11.9.2013. The objections were disposed off vide order dated 4.10.2013 and the case was fixed accordingly. Thereafter, the AO has observed that in the absence of any supporting documents to substantiate the identity, genuineness and creditworthiness of loan giver, the information received from the DIT(Inv.), regarding accommodation entries of ₹ 3,50,00,000/- is corroborated with the bogus transactions thr .....

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ved with the aforesaid order of the Ld. CIT(A), Assessee is in Appeal before the Tribunal for challenging the legal issue raised as well as the addition in dispute raised in the Additional Grounds filed during the hearing which are mentioned under para no. 2 of this order, as aforesaid. 5. At the time of hearing, Ld. Counsel of the assessee has only argued the legal ground that notice u/s. 148 issued in this case is contrary to the provisions of section 147 to section 151 of the Income Tax Act, .....

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; no application of mind; no proper satisfaction was recorded before issue of notice u/s. 148; no independent conclusion that there was escapement of income and no proper satisfaction / approval has been obtained from the Addl. CIT; Ld. Addl. CIT has granted the approval for reopening of the assessment in a mechanical manner and without due application of mind by writing the word approved . To support his contention he submitted that the issue in dispute is squarely covered in favour of the asse .....

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nch passed in the case of G&G Pharma India Ltd vs. ITO (Supra) and referred the page nos. 21-39 of his another Paper Book i.e. Compilation of case laws. He further draw our attention towards the page no. 39-56, and relied upon the ITAT decision dated 22.10.2014 in the case ITO vs. NC Cables Ltd. He further relied upon the decision of the ITAT, Mumbai Bench in the case Amar Lal Bajaj vs. ACIT (2013) 37 Taxmann.com 7 (Mumbai) Trib. (copy thereof at page no. 67-71 of the Paper Book) and also re .....

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ng the Appeal filed by the Assessee. 6. On the contrary, Ld. DR relied upon the order passed by the authorities below and draw our attention towards the page no. 17-21 of the Paper Book wherein the reasons recorded and approval thereof was mentioned. He stated that the AO has properly recorded the reasons for reopening and in turn Ld. Addl. CIT has granted the approval for the same, by due application of mind. He further stated that approval granted by the Addl. CIT is not mechanical on the cont .....

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n dispute. In our view, it is very much necessary to reproduce the reasons recorded by the AO before issue of notice u/s. 148 and the approval of the Ld. Addl. CIT, Range-2, New Delhi for reopening of assessment which reads as under:- FORM FOR RECORDING THE REASONS FOR INITIATING PROCEEDINGS U/S. 148 AND FOR OBTAINING THE APPROVAL OF THE ADDL. COMMISSIONER OF INCOME TAX / COMMISSIONER OF INCOME TAX 1. Name & Address of the Assessee M/s Banke Bihari Properties Pvt. Ltd. 144/2, Ashram Mathura .....

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hether any voluntary return had already been filed. No If so, date of filing the said return. NA 9. If the answer to item 8 is in negative please state The income originally assessed ….. Whether it is a case of under assessment, assessment at too low a rate, assessment which has been made the subject of excessive relief or allowing of excessive loss or depreciation. Yes 10. Whether the provisions of section 150(1) are applicable, if the reply is in the affirmative, the relevant facts may .....

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rivate limited companies floated by Shri Tarun Goyal during the period relevant to AY 2006- 07. In the report it has further been stated that all the entry giving companies are operating from the office of Shri Tarun Goyal addressed at 13/34, WEA Arya Sarns] Road, Karol 8agh, New Delhi and his earlier office at 203- Dhaka Chambers, 2069/39, Naiwala, Karol Sa'gn, New Delhi. It has also been stated that the directors of these companies .. are former and present employees of Shri Tatun Goyal wh .....

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fied after thorough investigation on the basis of definitive analysis of their identity, creditworthiness and the source of the money ultimately received by the beneficiaries, In the instant case, the assessee is found to be the beneficiary of accommodation entry from such entry operator controlled by Shri Tarun Goyal during the FY 2005-06 relevant to AY 2006-07 as per the following specific details of transactions. Theasesseehas received unexplained sums from the entry operators as per the abov .....

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meaning of section 147 of the Act. Since four years has expired from the end of the relevant assessment year, and the assessee has not filed any return of income, the reasons recorded above for the purpose of opening of assessment is up for kind satisfaction of the Addl CIT, Range-2, New Delhi in terms of the provisions to section 151(2) of the IT Act, 1961. Dated: 22.03.2013 Sd/- (PAWAN MEENA) ITO, WARD 2(3), NEW DELHI 12. Whether the Addl. CIT/CIT/CBDT is satisfied on the reasons recorded by t .....

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reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. Keeping in view of the facts and circumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asst .....

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rcumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. Our view is supported by the following judgments/decisions:- (A) The Tribunal in its decision dated 9.1.2015 passed in ITA No. 3149/Del/2013 (AY 2003-04) in the case of G&G Pharma India Limited vs. ITO, has held under:- 8. We have perused the aforesaid reas .....

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ceptable in the eyes of law. The AO had mechanically issued notices u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Investigation, Jhandewalan, New Delhi. Keeping in view of the facts and circumstances of the present case and the law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. year in dispute is bad in law and deserves to be quashed. We draw our support from .....

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sessee company filed writ petition and challenged the notice and the order on objections. The Delhi High Court allowed the writ petition and held as under: (i) Section 147 of the Income-tax Act, 1961, is wide but not plenary. The Assessing Officer must have reason to believe that income chargeable to tax has escaped assessment. This is mandatory and the reason to believe are required to be recorded in writing by the Assessing Officer. (ii) A notice u/s.148 can be quashed if the belief is not bon .....

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d money amounting to ₹ 5 lakhs during F.Y. 2002-03 as stated in the annexure. According to the information, the amount received from a company, S, was nothing but an accommodation entry and the assessee was the beneficiary. The reasons did not satisfy the requirements of section 147 of the Act. There was no reference to any document or statement, except the annexure. The annexure could not be regarded as a material or evidence that prima facie showed or established nexus or link which disc .....

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nt proceedings were not valid and were liable to the quashed. (ii). In the case of CIT vs. Atul Jain reported in 299 ITR 383 it has been held as under:- Held, dismissing the appeals, that the only information was that the assessee had taken a bogus entry of capital gains by paying cash along with some premium for taking a cheque for that amount. The information did not indicate the source of the capital gains which in this case were shares. There was no information which shares had been transfer .....

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s recording of reasons to believe for issuing a notice. The AO had clearly substituted form for substance and therefore the action of the AO was not sustainable. 9. In view of above, we are of the considered view that above issue is exactly the similar to the issue involved in the present appeal and is squarely covered by the aforesaid decisions of the Hon ble High Court of Delhi. Hence, respectfully following the above precedent, we decide the legal issue in dispute in favor of the Assessee and .....

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date i.e. 10th February 2003, from four entities which were termed as accommodation entries, which information was given to him by the Directorate of Investigation, the AO stated: "I have also perused various materials and report from Investigation Wing and on that basis it is evident that the assessee company has introduced its own unaccounted money in its bank account by way of above accommodation entries." The above conclusion is unhelpful in understanding whether the AO applied hi .....

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nder Section 143(3) of the Act. Without forming a prima facie opinion, on the basis of such material, it was not possible for the AO to have simply concluded: "it is evident that the assessee company has introduced its own unaccounted money in its bank by way of accommodation entries". In the considered view of the Court, in light of the law explained with sufficient clarity by the Supreme Court in the decisions discussed hereinbefore, the basic requirement that the AO must apply his m .....

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opening 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 . 14. In the cir .....

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.2013 has considered the legal position and held as follows. 5. We have considered the rival submissions and carefully perused the orders of the lower authorities and also the material evidences brought on 8 record from both sides. We have also the benefit of perusing the order sheet entries by which the Ld. CIT has granted sanction. Let us first consider the relevant part of the provisions of Sec. 151 of the Act. 151. (1) In a case where an assessment under sub-section (3) of section 143or sect .....

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or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice. (2) In a case other than a case falling under sub-section (1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of [Joint} Commissioner, after the expiry of four years from the end of the relevant assessment year, unless the [Joint} Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that .....

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less the Commissioner is satisfied on the reasons recorded by the AO that it is a fit case for the issue of notice which means that the satisfaction of the Commissioner is paramount for which the least that is expected from the Commissioner is application of mind and due diligence before according sanction to the reasons recorded by the AO. In the present case, the order sheet which is placed on record show that the Commissioner has simply affixed "approved" at the bottom of the note s .....

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ated by the officer and the Commissioner. The Hon'ble Supreme Court further observed that the ITO could not have had reason to believe that income had escaped assessment by reasons of the appellant-firm's failure to disclose material facts and if the 9 Commissioner had read the report carefully he could not have come to the conclusion that this was a fit case for issuing a notice under section 148. The notice issued under section 148 was therefore, invalid. It would be pertinent here to .....

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was deposited into account of Shri Nitin 1. Rugani and cheques were issued to the beneficiary of the loan transaction. In order to ensure that the money reached by cheques to the beneficiary Shri Nitin 1. Rugani kept blank cheques of the third parties. The assessee Shri Amar G. Bajaj had taken benefit of such entries of loans, commission ad bill discounting of ₹ 8,00,000/-, 11,21,243/- and 9,64,739/- respectively. The assessment was completed u/s. 143(3) of the 1. T. Act on 31st March, 19 .....

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ection 147 and 148 are charter to the Revenue to reopen earlier assessments and are, therefore protected by safeguards against unnecessary harassment of the assessee. They are sword for the Revenue and shield for the assessee. Section 151 guards that the sword of Sec. 147 may not be used unless a superior officer is satisfied that the AO has good and adequate reasons to invoke the provisions of Sec. 147. The superior authority has to examine the reasons, material or grounds and to judge whether .....

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ned the report thereby giving sanction to the AO. Nowhere the Commissioner has recorded a satisfaction note not even in brief. Therefore, it cannot be said that the Commissioner has accorded sanction after applying his mind and after recording his satisfaction. 8. Hon'ble Delhi High Court in the case of' United Electrical Co. Pvt. Ltd. Vs CIT 257 has held that "the proviso to sub-section (1) of section 151of the 10 Act provides that after the expiry of four years from the end of the .....

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ven the Additional Commissioner has accorded his approval for action under section 147 mechanically. We feel that if the Additional Commissioner had cared to go through the statement of the said parties, perhaps he would not have granted his approval, which was mandatory in terms of the proviso to sub-section (1) of section 151 of the Act as the action under section 147 was being initiated after the expiry of four years from the end of the relevant assessment year. The power vested in the Commis .....

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are very much relevant in the instant case as in the present case also the Commissioner has simply mentioned "approved" to the report submitted by the concerned AO. In the light of the ratios/observations of the Hon'ble High Court mentioned hereinabove, we have no hesitation to hold that the reopening proceedings visa-vis provisions of Sec. 151 are bad in law and the assessment has to be declared as void ab initio. Ground No. 1 of assessee's appeal is allowed. 10. As we have h .....

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Bench in the matter, we hold that the reopening is bad in law for the reason that the Ld. CIT(A), Delhi has not recorded his satisfaction as contemplated u/s. 151 of the Act. (D) ITAT, Mumbi Bench E in the case of Amarlal Bajaj vs. ACIT reported in (2013) 37 taxmann.com 7 (Mumbai -Trib) it has been held as under:- 5. We have considered the rival submissions and carefully perused the orders of the lower authorities and also the material evidences brought on record from both sides. We have also th .....

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n the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice] : Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice. (2) In a case other than a case falling under sub-section (1), no notice shall be issued under section .....

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by the Assessing Officer about fitness of a case for the issue of notice under section 148, need not issue such notice himself.] 6. A simple reading of the provisions of Sec. 151(1) with the proviso clearly show that no such notice shall be issued unless the Commissioner is satisfied on the reasons recorded by the AO that it is a fit case for the issue of notice which means that the satisfaction of the Commissioner is paramount for which the least that is expected from the Commissioner is applic .....

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issue of notice under section 148 merely noted " Yes " and affixed his signature there under. On these facts, the Hon ble Supreme Court observed that the important safeguards provided in sections 147 and 151 were lightly treated by the officer and the Commissioner. The Hon ble Supreme Court further observed that the ITO could not have had reason to believe that income had escaped assessment by reasons of the appellant-firm's failure to disclose material facts and if the Commissione .....

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mar G. Bajaj, Prop. Of Mohan Brothers, 712, Linking Road, Khar (W), Mumbai-52 was the beneficiary of such loans, expenses and gifts. The modusoperandi was to collect cash from the parties to whom loans were given and cash was deposited into account of Shri Nitin J. Rugani and cheques were issued to the beneficiary of the loan transaction. In order to ensure that the money reached by cheques to the beneficiary Shri Nitin J. Rugani kept blank cheques of the third parties. The assessee Shri Amar G. .....

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is assessment, income has escaped assessment within the meaning of proviso to Sec. 147 and explanation 2 (c)(i) of the income-tax Act, 1961. 7. In the light of the above mentioned reasons, in our considerate view, Section 147 and 148 are charter to the Revenue to reopen earlier assessments and are, therefore protected by safeguards against unnecessary harassment of the assessee. They are sword for the Revenue and shield for the assessee. Section 151 guards that the sword of Sec. 147 may not be u .....

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o accord his sanction to the issue of notice u/s. 148 of the Act. In the instant case, we find from the perusal of the order sheet which is on record, the Commissioner has simply put approved and signed the report thereby giving sanction to the AO. Nowhere the Commissioner has recorded a satisfaction note not even in brief. Therefore, it cannot be said that the Commissioner has accorded sanction after applying his mind and after recording his satisfaction. 8. Hon ble Delhi High Court in the case .....

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nt arbitrary exercise of power by an Assessing Officer to fiddle with the completed assessment . The Hon ble High Court further observed that what disturbs us more is that even the Additional Commissioner has accorded his approval for action under section 147 mechanically. We feel that if the Additional Commissioner had cared to go through the statement of the said parties, perhaps he would not have granted his approval, which was mandatory in terms of the proviso to sub-section (1) of section 1 .....

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n the present case there has been no application of mind by the Additional Commissioner before granting the approval . 9. The observations of the Hon ble High Court are very much relevant in the instant case as in the present case also the Commissioner has simply mentioned approved to the report submitted by the concerned AO. In the light of the ratios/observations of the Hon ble High Court mentioned hereinabove, we have no hesitation to hold that the reopening proceedings vis-à-vis provi .....

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at while according sanction, the Joint Commissioner, Income Tax has only recorded so Yes, I am Satisfied . In the case of ARjun Singh vs. Asstt. DIT (2000) 246 ITR 363 (MP), the same question has been considered by a Coordinate Bench of this Court and the following principles are laid down:- The Commissioner acted, of course, mechanically in order to discharge his statutory obligation properly in the matter of recording sanction as he merely wrote on the format Yes, I am satisfied which indicate .....

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