TMI Blog2019 (10) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... is hereby quashed. - Decided in favour of assessee. - ITA No. 1830/Del/2019 - - - Dated:- 16-10-2019 - Shri H.S. Sidhu, Judicial Member For the Assessee : Sh. Raj Kumar, CA For the Department : Ms. Ekta Vishnoi, Sr. DR. ORDER This appeal filed by the assessee is directed against the order passed by the Ld. CIT(A)-3, New Delhi on 15.02.2019 in relation to the assessment year 2010-11 on the following grounds:- 1. That under the facts and circumstances of the case the initiation of proceedings u/s. 147 is without jurisdiction, without application of mind, mechanical, on borrowed satisfaction and unwarranted in law as well as on merits. 2. That under the facts and circumstances, the approval u/s. 151 of Pr. CIT is mechanical, non speaking and without application of mind, which approval cannot provide a valid jurisdiction to proceed u/s. 147/148. 3. That under the facts and circumstances, both the lower authorities erred in law and on merits in disallowing the F O business loss of ₹ 20,04,174/- on sale purchase of shares on the ground of alleged manipulative ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a loss by way of Client Code Modification, which was not genuine. The AO further added the commission of ₹ 60,125/- paid for obtaining accommodation entry and assessed the income of the assessee at ₹ 17,92,860/- u/s. 143(3)/147 of the Act vide order dated 08.12.2017. Against the assessment order dated 08.12.2017, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 15.2.2019 has dismissed the appeal of the assessee. Aggrieved with the appellate order, assessee is in appeal before the Tribunal. 3. Ld. Counsel for the assessee only argued the ground no. 2 which is legal in nature and has filed the Paper Book containing pages 1 to 72 in which he has attached the copy of reasons; assessee s objection letter dated 11.5.2017; assessee s objection letter dated 15.5.2017; AO s objection disposal order dated 6.11.2017; copy of approval u/s. 151; contract notes issued by NSE broker Integrated Master Securities (P) Ltd.; ledger a/c for F O share transaction AY 2010-11; reconciliation of ₹ 20,04,174 vis a vis ₹ 20,34,437/-; HDFC bank statement reflecting cheque issued to broker; reply to AO u/s. 133(6) dated 30.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. 3. Yuvraj v. Union of India Bombay High Court [20091 315 ITR 84 (Bombay)/r20091 225 CTR 283 (Bombay) Points not decided while passing assessment order under section 143(3) not a case of change of opinion. Assessment reopened validly. 4. ACIT Vs Rajesh Jhaveri Stock Brokers (P.) Ltd (2007) 161 Taxman 316 (SC)/r20071 291 ITR 500 (SC)/[2007] 210 CTR 30 (SC) So long as the conditions of section 147 are fulfilled, the Assessing Officer is free to initiate proceedings under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings, even when intimation under section 143(1) has been issued ADANI EXPORTS v. DCIT[1999] 240 ITR 224 (Guj) distinguished. 5. Devi Electronics Pvt Ltd Vs ITO Bombay High Court 2017- TIQL-92-HC-MUM- II The likelihood of a different view when materials exist of forming a reasonable belief of escaped income, will not debar the AO from exercising his jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Sawlani Vs ITO Gujarat High Court 2016-TIQL-370-HC- AHM-IT It is not open to the assessee to object to the reopening by asking the AO to produce the source from where the AO has gathered the information for forming a belief that income chargeable to tax has escaped assessment. 13. Ankit Aqrochem (P.) Ltd. Vs JCIT Rajasthan High Court T20181 89 taxmann.com 45 (Rajasthan) Where DIT informed that assessee-company had received share application money from several entities which were only engaged in business of providing bogus accommodation entries to beneficiary concerns, reassessment on basis of said information was justified. 14. Rakesh Gupta Vs CIT P H High Court f20181 93 taxmann.com 271 (Punjab Haryana) Where Assessing Officer received information from Principle Director of Income Tax (Investigation) that assessee had received bogus loss from his broker by client code modification, reassessment on basis of said information was justified. 15. Abhishek Jain Vs ITO Delhi High Court (2018) 94 taxmann.com 355 (Delhi), 2018-TIQL-1059-HC-DEL-IT Date of Order 01.06.20181 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich Pr. CIT, Delhi-3, New Delhi has granted the approval in a mechanical manner, for issuing notice u/s. 148 of the Income Tax Act, 1961. It is noted that that reopening was done after 04 years, therefore, approval u/s. 151 of the Act was required from the Pr. CIT, who gave the approval in Column No. 12 by mentioning as under:- I am satisfied that it is a fit case for issue of notice u/s. 148 of the Act. 5.1 After perusing the aforesaid remarks of the Pr. CIT-3, Delhi, New Delhi, I find that the approval granted by the Ld. Pr. CIT-3, Delhi, New Delhi is a mechanical and without application of mind, which is not valid for initiating the reassessment proceedings, because from the aforesaid remarks, it is not coming out as to which material; information; documents and which other aspects have been gone through and examined by the Pr. CIT-3, Delhi for reaching to the satisfaction for granting approval. Thereafter, the AO has mechanically issued notice u/s. 148 of the Act. Keeping in view of the facts and circumstances of the present case and the case laws applicable in the case of the assessee, I am of the considered view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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