TMI Blog2015 (10) TMI 2633X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rajendra (Accountant Member) For the Assessee : Rajesh Sanghavi For the Revenue : Maurya Pratap-(DR) ORDER Rajendra (Accountant Member) Challenging the order dated 11.09.2013 of CIT(A)-18, Mumbai, the Assessee has filed the present appeal. Assessee, an individual, engaged in the business of, manufacturing and trading of readymade garments and fabrics filed its return of income declaring total income at ₹ 10,18,990/-, on 26. 10.2002. The return was processed u/s.143(1) of the Act. The case was re-opened u/s. 147 of the Act and a notice u/s.148 was issued on 27.3.2009.the assessment u/s. 143(3) r.w.s 147 of the Act was completed on 31.12.2009 determining the income of the assessee at ₹ 11.16 lacs. 2. Effective Ground of appeal deals with the validity of reopening of assessment u/s. 147 of the Act and the next ground deals with the merits of the case. We would like to adjudicate the jurisdictional issue before deciding ground No.2. The reasons recorded by the AO for reopening the assessment read as under : In this case, it has been found that assessee had obtained accommodation bills from Manoj Mills Prop. Rakesh Kumar Gupta of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions raised before the AO were submitted by the assessee before the JCIT. Finally, he upheld the re-opening. 4. Before us, Authorised Representative (AR) stated that the assessee was provided an unsigned and undated reasons, that the assessee had objected the re-opening, that the objections were not dealt by the AO, that FAA had not considered the factors relevant for deciding the appeal. He referred to page no.29 of the paper book. He relied upon the cases of German Remedies Ltd. (287ITR494), GKN Driveshaft (India) Ltd.(259ITR19). Departmental Representative(DR) supported the order of the FAA. 5. We have heard the rival submissions and perused the material before us. We would like to discuss some of the cases wherein the issue of reopening has been dealt with. In the case of Hemant Traders(375ITR167)there was an allegation that there was a group of assessees engaged in whole sale trading of potato on commission basis, that a survey was conducted on the basis of the allegation that the group of assessees were resorting to hoarding of potatoes and making huge profits by fluctuating the day-to-day price of potatoes in the market, that notices under section 148 were issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for any AY., that the assessee is entitled to counter those reasons by filing a reply, that it has to be adjudicated upon by the AO by a reasoned order, before he proceeds to make the assessment. In the case of MGM Export (323 ITR 331) the Hon ble Gujarat High Court, found that upon receipt of the reasons recorded, the assessee preferred objections, both on jurisdiction and on the merits, that the assessee passed the assessment order without disposing the objections. The Hon ble Court held that the AO was required to decide the preliminary objections and pass a speaking order disposing of the objections raised by the petitioner, that until such a speaking order is passed, the AO could not undertake re-assessment. Accordingly, the reassessment order was quashed and set aside We would also like to refer the case of Haryana Acrylic Manufacturing Co. (308 ITR 38). In that case the Hon ble Delhi High Court was dealing with the petition filed by the assessee challenging the re-opening the assessment. Deciding the appeal the Court held as under: .on the facts the reasons which were supplied to the petitioner were different from the reasons purportedly recorded in the form attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 147/148 of the Income-tax Act, 1961. We find that in the matter of Paramjit Kaur (311 ITR 38), the assessee had filed her original return declaring nil income. The AO initiated reassessment proceedings on the basis of information received from the survey circle that the she had got prepared a demand draft for a sum of ₹ 83, 040/-which was not accounted in the books of account of the assessee. On appeal by the assessee, the FAA upheld the validity of the notice u/s.148 of the Act, but set aside the assessment on the addition made by the AO and remitted the matter to him to frame a fresh assessment. On second appeal, the Tribunal held that since the AO failed to incorporate the material and its satisfaction for reopening the assessment, the same was invalid. On a reference, the Hon ble P H High Court held as under: . the Assessing Officer had not examined the information received from the survey circle before recording his own satisfaction of escaped income and initiating reassessment proceedings. The Assessing Officer had thus acted only on the basis of suspicion and it could not be said that it was based on belief that the income chargeable to tax ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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