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TMI Blog2019 (6) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... 857/- made u/s 68 of the Act. 5. Vide application dated 07.09.2017 the assessee raised additional grounds by which the notice issued u/s 148 was challenged on the ground that the AO has erred in assuming the jurisdiction for reassessment. 6. Since, the additional ground goes to the root of the matter we decided to proceed to adjudicate the same first. The DR strongly objected to the additional grounds raised by the assessee stating that the same was not raised before the lower authorities. We do not find any force in the objection of the DR. The Hon'ble Supreme Court in the case of NTPC 229 ITR 383 has clearly laid down that a point of law which requires no verification of fact can be raised at any stage. 7. The additional ground is admitted. Facts on record show that the original return was filed on 18.01.2010 declaring a total income of Rs. 1,56,038/- which was processed u/s 143(1) of the Act. Subsequently, a notice u/s 148 of the Act was issued on 18.03.2012. The reasons for reopening the assessment read as under: ANNEXURE-A Sh. Chander Jain, House No. 4682, Gali Umrao Singh, Pahari Dhiraj, Delhi 110 006. A.Y. 2009-10 Recording of the reasons for initiating proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are devoid of any application of mind since the AO completely ignored the fact that the return for the year under consideration was already filed on 18.01.2010. The AO further ignored the fact that vide letter dated 24.02.2012 the assessee has explained that he is a regular assessee and produced the copy of Income-tax return filed in the office of ITO, Ward 39(2). These facts can be gathered from the body of the assessment order itself in the first para on page 1 of the assessment order. 10. The Hon'ble High Court of Gujarat in the case of Sunrise Education Trust, 92 taxmann.com 74 has observed as under: "5. Having heard Ld. Counsel for the parties and having perused the documents on record, it could be straightway seen that the Assessing Officer in the reasons recorded, proceeded on the erroneous footing that the assessee had not filed return at all. The first premise for issuing the notice was thus factually incorrect. It is now not disputed by the Revenue that the assessee did file return of income for the year under consideration which was duly acknowledged by the Department. The entire reasoning thus proceeded on the wrong premise that the assessee had never field the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that the reasons recorded for reopening indicate is that cash deposits aggregating to Rs. 10,24,100/- have been made in the bank account of the assessee, but the mere fact that these deposits have been made in a bank account does not indicate that these deposits constitute an income which has escaped assessment. The reasons recorded for reopening the assessment do not make out a case that the assessee was engaged in some business and the income from such a business has not been returned by the assessee. As we do not have the liberty to examine these reasons on the basis of any other material or fact, other than the facts set out in the reasons so recorded, it is not open to us to deal with the question as to whether the assessee could be said to be engaged in any business; all that is to be examined is whether the fact of the deposits, per se, in the bank account of the assessee could be basis of holding the view that the income has escaped assessment. The answer, in our humble understanding, is in negative. The Assessing Officer has opined that an income of Rs. 10,24,100/- has escaped assessment of income because the assessee has Rs. 10,24,100/- in his bank account but then such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "the name of the assessee figures as one of the beneficiaries of these alleged bogus transactions" in the information given by the directorate. If the assessee was a beneficiary of such a scam, the income was indeed to have been taxed in its hands but then in the case before us the only reason for reassessment proceedings was the fact of deposit of bank account which by itself does not lead to income being taxed in the hands of the assessee. Ld. Departmental Representative has referred to several other judicial precedents in support of the proposition that at the stage of initiation of reassessment proceedings, all that is to be seen as existence, rather than adequacy, of the material to come to the conclusion that income has escaped assessment. To us, there cannot be any, and there is no, doubt on the correctness of this proposition but then, as we have elaborately explained earlier in this order, the material must indicate income escaping assessment rather then desirability of further probe in the matter which may or may not lead to income escaping the assessment. On the basis of reasons as recorded in this case, such an inference about income escaping assessment, in our humble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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