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TMI Blog2020 (12) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2004 which was later withdrawn by the AO and later have issued a fresh notice u/s. 148 of the Act in the year 2005 after getting approval of the Additional Commissioner of Income-tax which according to Ld. AR is erroneous, since in this assessment year as per the law in force it was the Joint Commissioner who was empowered to give approval for reopening u/s. 148 of the Act. Since admittedly, the AO had taken the approval from Additional Commissioner of Income-tax and not from Joint Commissioner of Income-tax, the notice u/s. 148 of the Act issued by the AO is bad in law and, therefore, the assessment framed is null in the eyes of law and so it may be quashed. 3. Per contra, the Ld. DR Shri Ajay Kumar drew our attention to sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall be issued under section 148 by an Assessing officer, who is below the rank of (Joint) Commissioner, after the expiry of four years from the end of the relevant assessment year, unless the (Joint) Commissioner is satisfied, on the reasons recorded by such Assessing officer, that it is a fit case for the issue of such notice." 7. So, according to Ld. AR since in this case Joint Commissioner did not approve the reasons for reopening, the notice u/s. 148 of the Act is bad in law. I do not agree with the said contention of the Ld. AR because as per clause 28(C) of section 2 of the Act which defines the Joint Commissioner means also the person appointed as Additional Commissioner for the purpose of this Act. Therefore, since the AO has i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the course of the appellate proceedings of the case, it has been contended by the appellant that the AO had only a separate the opening bank balance and had not accepted that IVPs and KVPs which were part of the opening balances was purchase in the year 1995-96. These post office investments got much owed in the assessment year 2002-03 and the interest thereon was shown in that year, which was also accepted by the AO in the course of the reassessment proceedings under section 148 of the Act for that year. Further, it was also contended by the appellant that there was meagre opening balance of Rs. 28,847/- which was reasonable considering the fact that the appellant was working as a junior with the Head of the Department of Medicine at NMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition. According to ld. AR, the assessee had opening capital which could be seen from a perusal of the paper book page 10 to 12 which shows that the assessee had made investment in Indira Vikas Patra to the tune of Rs. 1,60,000/- in the year 1995 and the assessee had encashed the same on maturity in the year 2001 which was to the tune of Rs. 2,80,000/-. Therefore, according to the Ld AR, the amount of Rs. 1,60,000/- should have been accepted as explained. According to the Ld, AR, in the reopening proceeding of the assessee for the AY 2002-03 the AO has accepted the receipt (matured amount) from Indira Vikash Patra amount and has taxed the interest component thereon. Therefore according to Ld. AR, no addition in respect of Rs. 1,60,000/- sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,50,000/- made by the AO as unexplained investment in flat in the name of the assessee. 16. Brief facts of the case as noted by the AO are as under: During the course assessment proceedings it was learned that the investment in flat of Rs. 3,98,945/- included a deposit of Rs. 1,50,000/- by draft by the mother of the assessee to the builder directly It was further learnt that the mother of the assessee Smt. Asha Sharma. has no bank account in her name and the said draft no. 462587 dated 26.4.1997 was purchased from cash deposits from Indian Overseas Rank. It was further stated that Smt. Asha Sharma has some agricultural lands but she is not assessed to income tax. The authenticity and genuineness of the transaction is not proved nor cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Ld. CIT(A) who sustained the same. Aggrieved, the assessee is before me. 18. I have heard rival submissions and gone through the facts and circumstances of the case. It is noted that the AO has noted that the assessee had purchased a flat for Rs. 3,98,945/- which included a deposit of Rs. 1,50,000/- made by draft by the mother of the assessee to the builder. It is noted that the assessee's consistent stand was that Rs. 1,50,000/- has been given by her mother Smt. Asha Sharma directly to the builder in the form of draft. In such a scenario, the assessee has discharged her burden to show the source of Rs. 1,50,000/-. Thereafter, if the AO had any doubt about the source of this amount, then the AO was at liberty to proceed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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