TMI Blog2017 (7) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in the assessment completed under section 147/144, thus find that there was no variation at least in one of the reasons communicated by the Assessing Officer to the assessee from the one recorded by him. Thus there was no legal infirmity in the reopening of assessment made by the Assessing Officer by issuing notice under section 148 as allegedly pointed out by the ld. CIT(Appeals) in his impugned order while annulling the assessment made by the Assessing Officer under section 147/144 - Decided in favour of revenue - I.T.A. No. 795/KOL/ 2015 - - - Dated:- 7-6-2017 - Shri P.M. Jagtap, Accountant Member For The Department : Md. Ghayas Uddin, JCIT, Sr. D.R. For The assessee : Shri V.N. Datta, Advocate ORDER Per Shri P.M. Jagtap, A.M. . : This appeal is preferred by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-18, Kolkata dated 31.03.2015, whereby he cancelled the assessment made by the Assessing Officer under section 147/144 of the Act holding the same to be invalid. 2. The assessee in the present case is an individual, who works as an Assistant Teacher of St. Lawrance High School. The return of income fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Assessing Officer under section 147/144 and proceeded to annul the said assessment for the following reasons given in paragraph no. 4.3 of his impugned order:- 4.3. I have considered the submission of the AR of the appellant in the backdrop of the action of the AO in reopening the case. I find that the AO had issued notice 148 dated 22.03.2011 pertaining to AY 2006-07 without being accompanied with the reasonable belief that income had escaped assessment. On being requested to supply the reasonable belief for reopening the assessment by the appellant vide letter dated 29.06.2011, the AO vide letter dated 29.08.2011 supplied the information wherein it was stated that credit of ₹ 4,25,079/- in the undisclosed SB bank a/c no. 9348 for the FY 2005-06 was not disclosed in the return. However on going through the reasons for reopening in the assessment order, the reasons seem to vary. I also find that the reason for reopening the assessment was never accompanied with the notice u/s 148. This I find is a breach of law. I find that based on the material on record and the AR's submission supra the AO's action is not sustainable on both facts and law. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 was very much sustainable. He contended that even if the other reasons are not found sustainable or there is some variation, the same will not invalidate the notice issued under section 148. In support of this contention, he relied on the decision of the Hon ble Calcutta High Court in the case of Jameson Magrudar Co. (P.) Limited -vs.- ITO [167 ITR 77 (Cal.)], wherein it was held that if a notice under section 148 is issued on more than one grounds, and one of such grounds is sufficient to upheld validity of notice, then even other grounds that are not sustainable, will not make the notice bad in law. The ld. D.R. contended that the notice issued under section 148 in the case of assessee thus was in accordance with law and the ld. CIT(Appeals) is not justified to annul the assessment made by the Assessing Officer under section 147/144 by treating the reopening to be invalid. 5. The ld. counsel for the assessee, on the other hand, strongly supported the impugned order passed by the ld. CIT(Appeals) holding the reopening of assessment by the Assessing Officer to be invalid and annulling the assessment made in pursuance thereof. He relied on the decision of the Hon ble Delhi H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the assessee to disclose fully and truly all material facts relating to the relevant accommodation entries. Moreover, in the said case, there was inordinate delay of about three years on the part of the Assessing Officer in supplying the reasons recorded by him for reopening and since the said reasons were communicated by the Assessing Officer to the assessee finally after the expiry of six years, the reopening was held to be invalid by the Hon ble Delhi High Court. On the strength of this decision of the Hon ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. (supra), the reopening of assessment in the case of Balwant Rai Wadhwa (supra) was held to be invalid by the Tribunal as it was found in the said case that although the notice under section 148 was issued within a period of six years from the end of the relevant assessment year, but the reasons recorded by the Assessing Officer for reopening were not communicated to the assessee along with the said notice and the same were supplied only after the expiry of six years. 8. In the present case, the facts involved, however, are materially different, inasmuch as after issuing the notice under section 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
