TMI Blog2011 (10) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Shri Deepak Gupta in which Shri Gupta allegedly admitted that bank account of donor was maintained and operated by him for providing bogus accommodation entry was never provided to the assessee and no opportunity to cross examine the said party was also provided. HELD THAT:- Taking into consideration the facts that the case was reopened by issue of notice u/s 148 and the fact that the revenue has not produced any evidence that the statement of Shri Deepak Gupta was confronted to the assessee during the assessment proceedings, we deem it fit to set aside the orders of the authorities below on this issue and remit the matter back to the file of the AO with the direction that the assessee be given further opportunity to produce Shri Ashok Bindal and the assessee should also be given opportunity to cross examine Shri Deepak Gupta. A fresh order be passed as per law after complying with above directions of ours and giving the assessee adequate opportunity of being heard - Matter restored back - I.T.A. No. 1259/Del/2010 - - - Dated:- 25-10-2011 - SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER For the Appellant : Shri Ashwani Taneja Shri Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was issued to the assessee through Speed Post dated 15.3.2007. The notice was also served by Notice Server on 29.3.2007. In response to the above notice, the assessee submitted that the return furnished on 26.7.2005 may be treated as return furnished in response to notice u/s 148 of the Act. 3. During the assessment proceedings, the Assessing Officer vide questionnaire dated 10.10.2007 required the assessee to file the copy of bank statement along with narration of each entry. The Assessing Officer also obtained a copy of bank statement of the assessee from the bankers. In the said bank statement, there were various deposits and the assessee was asked to explain the same, wherever required necessary confirmations were also asked for. As regards the amount of Rs..1,01,000/- received from Shri Ashok Bindal it was contended by the assessee that the same was a gift received from the said party vide cheque No.189768 dated 23.10.2004 drawn on Jaya Laxmi Cooperative Bank Ltd, Fatehpuri Branch, Delhi. The assessee also furnished a copy of affidavit, declaration of gift, income tax return acknowledgement for assessment year 2003-04, PAN No. in respect of Shri Ashok Bindal. The Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve facts and considering the various case laws which have been discussed by the Assessing Officer in the assessment order, the Assessing Officer did not accept the claim of the assessee that said amount of Rs..1,01,000/- was received by the assessee as gift from Shri Ashok Bindal. He, therefore, added the said amount as income of the assessee u/s 68 of the Act. The case laws relied on by the Assessing Officer were as under:- 1. Sajjan Dass Sons v. CIT 264 ITR 435 (Del.). 2. CIT v. Korlay Trading Co. Ltd., 232 ITR 820 (Kol.). 3. Sudha Devi v. MP Narain (1988) w SCJ 422. 4. Lal Chand v. CIT 22 CTR 135 (P H). 5. CIT v. Durga Pd. More. 82 ITR 549 (SC). 6. Sumati Dayal vl CIT 214 ITR 801 (SC). 7. Yashpal Singh v. CIT 158 Taxman 306 (P H). 5. Aggrieved, the assessee filed appeal before the Ld CIT(A). 6. Before the Ld CIT(A), the assessee challenged both validity of reopening of assessment as well as the justification of the addition of Rs..1,01,000/- u/s 68 of the Act. 7. With reference to validity of reopening of assessment u/s 147 of the Act, the following contention was raised by the assessee before the Ld CIT(A):- 1. There was no material on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the addition was not justified. Reliance was placed on the following case laws:- 1. DCIT v. Mayawati 113 TJ 178 (Del.). 2. DCIT v. Ramdeo Kumar Chitlangia 89 TTJ 346 (JD). 3. ITO v. Kailash Chand Bansal (Delhi Tribunal) 129 Taxman 10. 4. Asst. CIT v. Manoj Kumar Sekhri 142 Taxman 15 (ASR. Tribunal). 5. Nek Kumar v. Astt. CIT 191 CTR 207 (Raj.). 6. CIT v. R.S. Sibal 187 ITR 291 (Del.). 7. Jawahar Lal Oswal v. ACIT 71 ITD 324 (Chd.). 8. Sunita Vachani v. CIT 184 ITR 121 (Del.). 9. Rajpal Singh Sandhu v. ITO (I.T.A. No.3785/2004). 10.Govind Prasad v. ITO (I.T.A. NO. 4527/2004). 11. Meena Rastogi v. ACIT (I.T.A. No.5086/91). 12. Smt., Shanti Devi v. ITO 90 TTJ 651 (Agra). 13. ACIT v. Manoj Kumar Sekhri 86 TTJ 510 (Asr.). 11. The Ld CIT(A) noted that prior to reopening of assessment u/s 147 of the Act, only processing u/s 143(1) of the Act was done. The Assessing Officer, thereafter, received the information vide DIT (Inv.I), New Delhi letter dated 15.2.2007. In the above facts, the ld CIT(A) opined that there was prima facie information available to the Assessing Officer on the basis of which action u/s 147 could validly be taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T (2007) 158 Taxman 306 (P H). 15. The Ld CIT(A), therefore, upheld the impugned addition of Rs..1,01,000/-. Aggrieved, the assessee has filed the appeal before the Tribunal. 16. Before us, the ld AR for the assessee in addition to submissions made before the authorities below, submitted that it could be seen from the assessee s paper book page 9 that the reasons for reopening is in a cyclostyled form. From the same it could be concluded that the reopening was done by the Assessing Officer in a mechanical manner without proper application of mind. It was also argued by him that the facts and circumstances of the case would show that the satisfaction of the Assessing Officer was not of his own but merely a borrowed satisfaction of the Investigation Wing. In such circumstances, it was contended by him that the reopening of assessment u/s 147 of the Act has to be considered as invalid. Reliance was placed by him on the following case laws:- 1. Signature Hotels Pvt. Ltd. v. ITO Writ Petition No.8067/ 2010 dated 21st July, 2011 (Delhi High Court). 2. CIT v. Atul Jain 299 ITR 383 (Del.). 3. CIT v. Smt. Paramjit Kaur 311 ITR 38 (P H). 4. CIT v. Indian Sugar Gen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional High Court in the case of Signature Hotels (supra) is not applicable in the facts of the present case. As regards the other contentions of the assessee that the reopening was done in a mechanical manner without application of mind, we find there is nothing on record to support such a contention. The reopening was also not done on account of change of opinion as prior to reopening of the assessment the case was only processed u/s 143(1) of the Act. There is a live link between the information which was available with the Assessing Officer and his formation of belief that income has escaped assessment. Sufficiency of such information cannot be gone into while deciding the issue of validity of reopening. The Assessing Officer also cannot make any enquiry as no proceedings were pending before him for the relevant assessment year. In the above view of the matter, we are in agreement with the finding of the Ld CIT(A) that the reopening of assessment u/s 147 of the Act was valid. Thus, ground No.1 taken by the assessee is rejected. 20. As regards the ground taken with reference to addition of Rs..1,01,000/- on merit, the ld AR for the assessee in addition to reiteratin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case are as under. The assessee contended that she had received an amount of Rs..1,01,000/- as gift from Shri Ashok Bindal by cheque dated 23.10.2004. In support of the above contention, the assessee furnished copy of gift deed which was not signed by the donor as well as the witness, the affidavit of the donor, copy of PAN card of the donor, copy of acknowledgement of filing of the return of the donor for assessment year 2003-04 with the return of income. Such return of income was processed u/s 143(1) of the Act. Subsequently, information was received from DIT (Inv.I), New Delhi on 5.2.2007 to the effect that the assessee had taken bogus accommodation entry amounting to Rs..1,01,000/- during the previous year under consideration. The case was reopened on the basis of above information and during the assessment proceedings, the assessee was required to produce Shri Ashok Bindal for examination as the summon issued u/s 131 of the Act to the said party was not complied with. The assessee did not comply on the next date of hearing i.e. 29.11.2007. The assessee vide letter dated 29.11.2007 which was sent by Speed post dated 8.12.2007 furnished photo copy of gift deed which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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