TMI Blog2020 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... y has received the accommodation entry of at least ₹ 45,00,000/- from various entities as bogus share capital share premium during the year. But the Assessing Officer has not made out any case from the transaction specific valid material which can justify the reopening action u/s 148 - Reassessment cannot be merely based on the basis of the information of ADIT (Inv.)-Unit-2(1), New Delhi. Such reassessment shall not be valid as the Assessing Officer held no belief on his own at any point of time, that income of assessee has escaped assessment on account of non disclosure of the relevant income. The reasons recorded must be based on evidence. The reasons recorded by the Assessing Officer cannot be supplemented by assessment order, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of assessment order - reasons of the Assessing Officer for reopening should be based on direct and circumstantial evidence. All these aspects are missing in the reasons recorded in the present assessee s case - Decided in favour of assessee. - ITA. No. 8884/Del/2019 - - - Dated:- 6-11-2020 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w required by assessee fulfilled as revealed in findings from acquiescence by silence. 9. Because the action is being challenged that source of source is required to prove as per section 68 whereas amendment to section 68 is applicable from 1.4.2013 and assessee s case is related to AY 2011-12 where amendment is not applicable. 10. Because the action is being challenged on facts and law for making addition on account of commission paid amounting ₹ 1,12,500/- under section 69. 11. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee. 3. The assessee filed return of income u/s 139(1) of the Income Tax Act, 1961 on 29.09.2011 declaring an income of ₹ 8,60,660/-. After relying upon the report of Investigation Wing, proceedings were initiated u/s 147 of the Act after taking approval u/s 151 of the Act. Notice u/s 148 was issued on 31.03.2018. In response, assessee efiled the return of income on 06.10.2018 and requested the Assessing Officer to provide reasons re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious entities as bogus share capital share premium during the year, hence no case specific and transaction specific valid material is brought on record which may justify the instant reopening action u/s 148 of the Act. The Assessing Officer had acted only on the basis of suspicion and it could not be said that it was based on belief that the income chargeable to tax had escaped income. The Assessing Officer had to act on the basis of reasons to believe and not on reasons to suspect . The Ld. AR further pointed out that the major weakness in reasons is no where the statement of searched persons were brought on records qua seized papers which vitiate the entire exercise. Moreover, only one sided version of investigation wing on seized material that too which is not found from assessee s possession is submitted that it cannot be made as valid basis to infer income escaping assessment u/s 148 of the Act. The Ld. AR relied upon the following decisions: i) G G Pharma 384 ITR 147 (Del) ii) Meenakshi Overseas 395 ITR 677 (Del) iii) Sarthak Securities Co. (P) Ltd. vs. ITO (2010) 47 DTR 201 (Del) The Ld. AR further submitted that the Assessing Officer has reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of ADIT (Inv.)-Unit- 2(1), New Delhi. After going through the reasons there is mention that the assessee company has filed ITR for A.Y. 2011-12 but no scrutiny assessment u/s 143(3) was made. There is no whisper in the recorded reason that there was any omission or failure on the part of the assessee in disclosing fully and truly material facts in the return of income. The contentions of the Ld. AR that the information received by the Assessing Officer nowhere in reasons recorded mentioned the name of the bank, cheque number through which assessee have received the amount from the parties, appears to be correct in our opinion. In reasons recorded, the Assessing Officer has merely mentioned that the assessee received ₹ 45,00,000/- as share capital but from whom the same has been received is not mentioned in the said reasons. Further in reasons recorded, it is mentioned that the Assessing Officer has the information that the assessee received ₹ 65,00,000/- from Focus Industrial Resources Ltd. while addition to share capital share premium shows that the assessee company has received the accommodation entry of at least ₹ 45,00,000/- from various entities as bogus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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