TMI Blog2018 (6) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... der. 2. First, we will take I.T.A.No. 151/Ind/2013 for assessment year 1999-2000. 3. The assessee has raised following grounds of appeal :- 1 . (a) That, on the facts and under the circumstances of the case, the learned CIT(A) grossly erred in law in upholding the validity of issuance of Notice u/s. 148 and initiation of reassessment proceedings u/s. 147 of the Income- Tax Act, 1961. ( b) That, the learned CIT(A) grossly erred in upholding the reopening of the assessment by giving an erroneous finding that the appellant failed to raise any objection against the reopening at the appellate stage. 2. That, on the facts and in the circumstances of the case, the learned CIT(A) grossly erred in sustaining addition to the extent of ₹ 1,02,97,300/- out of the addition of ₹ 1,14,49,5OO/- made by the learned AO under the head 'Advance Money for Plot at Shell City', by invoking provisions of section 68 of the Income-Tax Act, 1961. 3. That, on the facts and in the circumstances of the case, the learned CIT(A) grossly erred in confirming addition of ₹ 10,00,000/- made by the learned AO in the name of 'Sunny Co-operative Housing Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee for the sake of clarify :- REASONS RECORDED BY ITO, 2(3), INDORE Dated 31.03.03 : During the assessment proceeding for the assessment year 2000-01, the assessee vide letter dated 29.11.2002 furnished the details of the deposits of ₹ 1,75,43,719/- from the members of the shell city on account of advances against the proposed sale of plots in shell city. Out of ₹ 1,75,43,719/- there was a deposit of ₹ 1,14,49,500/- during previous year relevant to assessment year 1999-2000. The assessee was asked to prove the identity, capacity and genuineness of transactions in respect of aforesaid deposit. The assessee furnished the photocopies of the applications from the members for the allotment of membership and plot in shell city. The assessee furnished the copies of accounts of members as appearing in account books of the assessee for the previous year relevant to assessment year 99-00. On perusal of the copies of the a/c of the members it was noticed that there were deposits of ₹ 1,00,00,000/- or so in the name of following members :- 1. Ashok Kashyap ₹ 1,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - ₹ 1,00,000/- -do- 22. Salim Kokkar ₹ 1,00,000/- -do- 23. Surya Kanta Gupta ₹ 1,00,000/- -do- 24. Vijay Pradhan ₹ 1,00,000/- -do- 25. Vishabhnath Borasi ₹ 1,00,000/- -do- 26. Multan Singh ₹ 1,00,000/- Copy of application not furnished 27. Naresh Parmar ₹ 1,00,000/- -do- 28. Niraj Parmar ₹ 1,00,000/- -do- 29. Anirudh Gupta ₹ 1,00,000/- -do- 30. Dinesh Borasi ₹ 1,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t within meaning of Section 148 of the Act. Issue notice u/s 148 of Act. Sd/-ITO 2(3) Indore. Objections raised by the Ld. Authorized Representative of the assessee before the ITO Wd.2(3), Indore vide letter dated 22.10.2003 Sub : Objection to the issue of notice u/s 148 on the basis of reason recorded A.Y. 1999- 2000. We hereby object to the action of the AO in issuing notice u/s 148 of the Income-tax Act, 1961, on following grounds:- 1. That the action of the AO is without jurisdiction. As per Section 147 If the AO has reason to believe He can invoke the section, as reason to believe are stronger than the satisfaction of AO. The power of AO are not unbridled one. And it cannot be mechanical reopening of the assessment. 1.1 The assessee has received ₹ 1,14,49,500/- during previous year relevant to assessment year 1999-2000 from the booking of plots at its real estate project. The complete list of applicant, photocopy of applications, copy of accounts of each member is already in the Department records. During the assessment proceeding of assessment year 2000-2001 it was submitted before the AO that the assessee is having business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and therefore there is no reason to believe that the income has escaped assessment and it has been held that suspicion is not belief. 3. That the belief entertained by the AO is arbitrary or irrational there is no rational are intelligible nexus between the reason and the belief. 4. That assessee has received ₹ 5.00 lakhs from Sunny Cooperative Housing Society Ltd. During the assessment proceedings of assessment year 2000- 2001 the assessee submitted confirmation and copy of bank accounts of the creditor and the transaction stands proved, therefore, reopening on this ground is erroneous and illegal. 5. That the assessee had received the share application money of ₹ 1.00 lac, from Mr. Premchand Borasi. The assessee had submitted the copy of share application and bank account. It was also submitted that issue of share are not covered by Section 68 as held by various courts. It was submitted that he is sitting MLA still the AO doubting the identity of him therefore this ground of reopening is arbitrary, biased and illegal. In view of above, we have strong objection to the action of the AO in concluding that income has escaped assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis, by estimating the closing stock of the restaurant. 7. That, the learned CIT(A) erred, in not allowing the claim of the appellant in respect of unabsorbed depreciation and depreciation on Hotel Building. 11. The Ld. Counsel for the assessee has adopted the same arguments as taken in I.T.A.No. 151/Ind/2013 for the assessment year 1999-2000. He submitted that in this appeal also the assessment framed suffers from illegality as against the reasons recorded for reopening. The assessee has raised objection which has not been disposed of by the AO. He submitted that the AO was required to dispose of the objection by way of separate order in the light of the judgement of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Limited vs. ITO and others, (2003) 259 ITR 19 (S.C.) 12. We have considered the facts, rival submissions and perused the material available on record. In this appeal also, the assessee had raised the objections against reopening of the assessment and the Assessing Officer was required to dispose of those objections before framing the assessment. We, therefore, deem it proper to set-aside the assessment order and restore the objection r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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