TMI Blog2021 (2) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve that income of ₹ 17,69,000/- chargeable to tax had escaped assessment. The reasons are therefore, incorrect and based on no belief of AO. The ingredients of section 147 of IT Act are, therefore, not satisfied. The AO did not apply mind to information. The issue is, therefore, covered by order of ITAT Delhi Bench in the case of Dheeraj Yadav [ 2021 (1) TMI 731 - ITAT DELHI] . Following the same, we set aside the orders of the authorities below and quash the reopening of the assessment. Resultantly, all additions stand deleted. - Decided in favour of assessee. - ITA.No.1135/Del./2018 (Assessment Year 2012-13) - - - Dated:- 8-1-2021 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER For Assessee: Shri Gaurav Bansal, CA For Revenue: Shri Prakash Dubey, Sr. DR ORDER This appeal by assessee has been directed against the order of Ld. CIT(Appeals), Muzaffarnagar dated 14.11.2017 for AY 2012-13, challenging the reopening of the assessment u/s 148 of the IT Act and addition of ₹ 18,78,400/- u/s 69A of the IT Act. 2. I have heard Ld. Representatives of both the parties through Video Conferencing and perused the material on record. 3. Briefly the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Ward 2(5), Khatauli 5. He has submitted that prior to recording the reasons, AO issued a letter dated 18.08.2015 (PB1) seeking explanation of deposits of ₹ 17,69,000/- in the bank account of the assessee which fact is incorrect because the total deposits in his two bank accounts was of ₹ 18,78,400/- which AO has ultimately accepted and made addition of this amount. He has submitted that AO was having no authority to issue letter dated 18.08.2015 because no return was pending on the date of issue of this letter. Assessee filed reply before AO dated 07.12.2015 (PB2) in response to the query letter dated 18.08.2015 in which all these facts were explained. He has submitted that cash deposit in the bank account per se is not income of the assessee. The assessee has income from profession and interest income as well as agricultural income and amounts were deposited on account of sale of Popular Trees. Therefore, AO recorded incorrect facts in the reasons, therefore, reopening of the assessment is bad in law and liable to be quashed. 6. On the other hand, Ld. DR relied upon the orders of the authorities below and submitted that AO on the basis of information r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e I.T. Act, 1961 and further made addition of ₹ 756/- on account of interest earned. The income was computed at ₹ 11,07,916/-. The Ld. CIT(A) dismissed the appeal of assessee. 4. Learned Counsel for the Assessee referred to the reasons recorded by the A.O. for reopening of the assessment, copy of which is filed at pages 2 and 3 of the PB. The same reads as under : ANNEXURE-A The assessee is an individual whose jurisdiction lies in this Ward. As per ITS. Retails, the Assessee has not filed any return of income. 2. Information has been received from ITO Ward-46(4) vide F.No.ITO/W-46(4)/2017-18/645, Dated 22.03.2018, received in this office on 22.03.2018. 3. The department is having Information that during the F.Y. 2010-11 the assessee has deposited cash amounting to ₹ 11.07.160/- with ICICI Bank Ltd., and received commission payments amounting to ₹ 2,533/- from KARVAT HEALTH CARE SERVICES PVT LTD. 4. Since the assessee had not filed ROI for the year under consideration, the source of cash deposit made and commission payments received by the assessee amounting to ₹ 11,09,693/- remains unexplained and also they exceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of ₹ 11,49,750/-, therefore, A.O. has recorded incorrect facts in the reasons for reopening of the assessment that there was a cash deposit of ₹ 11,07,160/-. He has submitted that in the case of Shri Abrar Ahmad Qasimi, Delhi vs., ITO, Ward-46(5), New Delhi in ITA.No.3177/Del./2017, for the A.Y. 2007-2008, the ITAT Delhi SMC-Bench, Delhi vide Order Dated 01.06.2018 has held that cash deposit per se cannot be income of the assessee and reassessment proceedings have been quashed. The Order is reproduced as under : IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.No.3177/Del./2017 Assessment Year 2007-2008 Shri Abrar Ahmad Qasimi, Delhi 110 066. C/o. M/s. RRA Tax India D-28, South Extension, Part-1, New Delhi - 110049. PAN AHGPA5521K vs The Income Tax Officer, Ward-46(5), New Delhi. (Appellant) (Respondent) For Assessee : Shri Somil Agarwal, Advocate For Revenue : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopening of the assessment under RTI Act, 2005, copy of which is filed on record, in which, A.O. has recorded reasons for reopening of the assessment. The same reads as under : As per information available in ITD System of the Income Tax Department, Sh Abrar Ahmad Qasimi during the financial year 2006-07 relevant to A.Y. 2007-08 has made cash deposit of ₹ 14,75,000/- in saving bank account. The assessee has not filed Tax return for A.Y. 2007-08. After examination of information available in ITD system by independent application of mind, I have reason to believe that income of ₹ 14,75,000/-for Financial Year 2006-07 relevant to Assessment Year 2007 -08 has escaped assessment with in meaning of sec 147 of Income Tax Act, 1961. The case for assessment year 2007 -08 is taken up for assessment u/s. 147 of I.Tax Act, 1961. 5.1. He has submitted that mere deposit of the cash in the bank account is not sufficient to believe that income chargeable to tax has escaped assessment, therefore, reopening of the assessment is bad in law. It was submitted that the issue is covered in favour of assessee by order of ITAT, SMC-Bench in the case of Shri Arvind Yadav vs. ITO, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quash the reopening of the assessment in the matter. Resultantly, the addition made in the reassessment would stand deleted. 8. In the result, the appeal filed by the assessee is allowed. 7.1. The issue is, therefore, covered in favour of the assessee by the decision of the Delhi Tribunal in the case of Shri Arvind Yadav (supra). Following the reasons for decision for the same, I set aside the orders of the authorities below and quash the reopening of the assessment in the matter. Resultantly, the addition made in the re-assessment would stand deleted and appeal of assessee is allowed. 8. In the result, appeal of the assessee is allowed. 4.2. He has submitted that A.O. has not made any addition on account of commission payment in the reassessment order, therefore, A.O. has recorded wrong facts in the reasons for reopening of the assessment and there was a complete non-application of mind. Therefore, the reopening of the assessment may be quashed. He has relied upon the Judgments of Hon ble Delhi High Court in the case of Pr. CIT vs., G G Pharma India Ltd., [2016] 384 ITR 147 (Del.), Pr. CIT vs., RMG Polyvinyl [2017] 396 ITR 5 (Del.). 5. On the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, the A.O. would not get jurisdiction to reopen the assessment on such wrong facts recorded in the reopening of the assessment. The A.O. has also not applied his mind to the facts of the case and merely based on information without verifying the same recorded reasons for reopening of the assessment. Thus, the reopening of the assessment cannot be sustained in Law. We are fortified in our view by the Judgments of the Hon ble Punjab Haryana High Court in the case of CIT vs., Atlas Cycle Industries [1989] 180 ITR 319 [P H], Judgment of Hon ble Delhi High Court in the case of Pr. CIT vs., SNG Developers Ltd., [2018] 404 ITR 312 (Del.), Judgment of Hon ble Delhi High Court in the case of Shamshad Khan vs., ACIT [2017] 395 ITR 265 (Del.) and Judgment of Hon ble Bombay High Court in the case of Siemens Information Systems Ltd., vs., ACIT Others [2007] 293 ITR 548 [Bom.]. It may also be noted here that though A.O. has referred to the commission earned by the assessee in assessment year under appeal, but, no addition have been made in the re-assessment order. Considering the above facts in the light of above Judgments and Order of the Tribunal in the case of Shri Abrar Ahmad Qasimi, D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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