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TMI Blog2020 (9) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Rs. 15,00,000/- on account of gift made by her son Sumit Chhabra. 5. On facts and in circumstances of the case Ld. ITO was not justified in making addition of 15,00,000/- on account of gift made by Sh. Ashok Kumar husband of the assessee. 6. On facts and in circumstances of the case Ld. ITO was not justified in making addition of 10,00,000/- on account of gift made by Sh. Ashok Kumar HUF and husband of the assessee. 7. On facts and in circumstances of the case Ld. ITO was not justified in making addition of 6,00,000/- on account of gift made by Sh. Babu Ram father in law of the assessee. 3. Vide ground No. 2 & 3 of this appeal the assessee challenged the jurisdiction of the A.O. in issuing the notice under section 148 r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as 'Act') for reopening the assessment. 4. The facts of the case in brief are that the assessee e-filed her return of income on 30/03/2011 declaring an income of Rs. 2,06,465/-. Thereafter, the A.O. reopened the assessment under section 147 of the Act, by issuing the notice under section 148 of the Act on 27/03/2017. The A.O. also issued the notice under section 142(1) of the Act on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -16M for Rs. 49,32,000/- and the assessee has declared the purchase of Agriculture land in his return of income and balance sheet filed with the department and this is the part of balance sheet filed with the return of income. Copy of which has already been filed. The assessment has become final. In the return of income the assessee has declared the source and purchase of Agriculture Land. The purchase of land is part of the balance sheet filed with the return of income. 5. That in addition to above purchase of agriculture land for Rs. 49,32,000/- if your office has any other information for purchase of property amounting to Rs. 1,49,02,500/- the same may be supplied to us. So keeping in view the above facts and circumstances there were no reason to believe for issuance of notice u/s. 147/148 of the Income Tax Act and no income has escaped assessment within the meaning and bring my objection on the record and dispose of the same." 5.1. The A.O. however did not find merit in the above objections raised by the assessee by observing as under: 1) Firstly, this information was Non-PAN information on the basis of which this case was reopened u/s. 148 of the Income Tax Act, 1961. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the validity of the reopening of assessment and submitted as under: "a) That the assessee filed her return of income electronically vide e-filing acknowledgement No. 210169320300311 on dated 30.03.2011 declaring the income of Rs. 2,06,465/-. Copy of acknowledgement of return of income is enclosed. The case was processed u/s. 143(1) of the I.T. Act and the assessment has become final. b) That a notice dated 27.03.2017 issued u/s. 148 of the I.T. Act was served upon the assessee and in response to notice the assessee submitted that the assessee has already filed her return of income electronically vide e-filing acknowledgement No. 210169320300311 on dated 30.03.2011 and the assessment have become final. It was further submitted that return of income already filed may be treated against the notice issued u/s. 148 of the I.T. Act. Copy of acknowledgement of return of income along with profit and loss account, capital account and balance sheet were furnished to the A.O., now enclosed herewith. The assessee further requested the AO for supply of copy of reasons recorded for issue of notice u/s. 147/148 of the I.T. Act. c) The A.O. supplied copy of reason recorded for issue of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56/8809 share in 440K 9M. The share of assessee comes to 10A-2K-16M for Rs. 49,32,000/- plus stamp duty expenses and the assessee has declared the purchase of Agriculture land at Rs. 52,20,000/- in her return of income and balance sheet filed with the department and this is the part of balance sheet filed with the return of income. Copy of which has already been filed. The assessment has become final. In the return of income the assessee has declared the source of purchase of Agriculture Land. The purchase of land is part of the balance sheet filed with the return of income. f) That in addition to above purchase of agriculture land for Rs. 49,32,000/- plus stamp duty expenses, it was submitted before the A.O. that if office has any other information for purchase of property amounting to Rs. 1,49,02,500/- the same may be supplied to the assessee but no such information was supplied by the department because there was no such purchase of property. g) That the perusal of reason recorded shows that reason for formation of belief for issue of notice is explanation 2(a) to section 147 and the AO has mentioned that the assessment proposed to be made is for 1st time and no voluntary re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment under Section 147 depends upon issuance of valid notice and in the absence of the same entire proceedings taken by him would become void for want of jurisdiction. k) In the case of PCIT Vs. Manzil Dinesh Kumar Shah (2018) 95 Taxmann.com 46 Page (Guj) HC, the court has held that even the assessment which is completed u/s. 143(1) cannot be re opened without proper 'reason to believe'. The AO is not allowed to re open a case for making a fishing or roving enquiry without proper reason to believe, which is not permissible. That no reassessment just to make a enquiry or verification or making fishing enquiry can be made keeping in view the following case laws:- i) Bhor Industries Limited Vs. ACIT (2004) 267 ITR (161 Bombay) ii) Hindustan Lever Ltd. Vs. R.B. Wadkar, ACIT (2004) (2004) 268 ITR 332 (Bom) iii) Bhogwati Sahakari Sakhar Karkhana Ltd. Vs. Dy. CIT: (2004) 268 ITR 186 (Bom) iv) Ajanta Pharma Ltd. Vs. ACIT (2004) 267 ITR 200 (Bom) v) Pr. CIT Vs. G & G Pharma India Ltd. (2017) 383 ITR 147 (Delhi)(HC) Therefore keeping in view the above facts and circumstances the completion of assessment u/s. 143(3) on the basis of initiation of proceedings are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2018 * Shri Ram Mohan Rawat Vs. ITO in ITA No. 1014/JP/2018 order dt. 10/10/2019 (Jaipur) * Shri Allen De Noronha Vs. ACIT in ITA No. 338/LKW/2015 order dt. 07/05/2018 (Lucknow Bench) * Shri Manish Jain vs. ITO in ITA No. 755/Chd/2012 dated 16.04.2013 (Chd. ITAT) * M/s. Raj Hans Towers Pvt. Ltd. Vs. ITO in ITA No. 1570/Del/2013 order dated 14.08.2015 (Del ITAT) * Shri Satnam Singh vs. DCIT in ITA No. 144/Chd/2016 order dated 26.09.2016 (Chd ITAT) * Shri Harakchand K. Gada (HUF) v. ITO ITA No. 2800/Mum/2014, date:09/12/2015 (Mum.) (Trib.) * Mumtaz Haji Mohmad Memon vs. ITO in ITA No. 21030/2017 dated 21.03.2018 (Guj) * Nirmala Aggarwal vs. ACIT ITA No. 995-996/JP/2016 dated 11.04.2018 (Jaipur Trib) * Rajender Prasad Choudhary vs. ACIT in ITA No. 1495-1496/JP/2018 order dated 12.06.2019 (Jaipur Trib) 9. In his rival submissions the Ld. DR reiterated the observations made by the authorities below and strongly supported the impugned order. It was further submitted that the assessee had not given any information and also did not file any reply when the A.O. specifically asked the assessee about the investment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was apparent that the fact of non-filing of the return for the assessment year 1991-92 had weighted with the respondent for arriving at the satisfaction about the failure on the part of the assessee and escapement of assessment of income. However, the material on record showed that the return had been filed. In such circumstances, it could not be said with certainty as to which fact would have weighed with the officer concerned and once it was shown that an irrelevant fact had been taken into consideration, to what extent the decision was vitiated would be difficult to say. Moreover the Income-tax Officer had stated that the payment which was stated to be undisclosed income relevant for the assessment year 1991-92 could have been made during the financial year 1990-91 relevant to the assessment year 1991-92 and hence, "to cover up that probability, protective addition was made in the assessment year 1992-93." The first appellate authority decided the appeal for the assessment year 1992-93 on January, 1996, and the reason had been recorded thereafter on August 18, 1997. The notice of reassessment was not valid and was liable to be quashed." 10.3. A similar view has been tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally on 29.10.2007. This fact was also subsequently accepted by the AO that the assessee filed the return of income under section 139(1). The second aspect of the reasons that the assessee has made bogus purchases is also not based on any enquiry or verification of record by the AO but this is simply reproduction of information received from the Investigation Wing. The said information is also incomplete as regards the details of the purchases and the parties from whom such purchases were made by the assessee. Thus the reasons recorded by the AO manifest that there is no application of mind and the averments as recorded in the reasons are very vague and general and rather inconsistent with the facts available on record so far as the filing of return of income by the assessee. The formation of belief on such incorrect and vague reasons would lead the reopening of the assessment as invalid." 10.6. In the present case also the A.O. reopened the assessment on the basis of wrong facts, so respectfully following the ratio laid down in the aforesaid referred to cases, I am of the view that the reopening of the assessment in the present case was not valid, accordingly, the same is quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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