TMI Blog2022 (8) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... the reassessment proceedings. A list of questions which needs to be filed by AO while initiating reopening of a case. Sl.No. 8 of the questions requires Assessing Officer to answer to a question as to whether provisions of Section 147(a) or 147(b) are applicable. Against reply to this question Section 147(a) has been mentioned and it has also been mentioned that no return has been furnished by the assessee. On the contrary, the fact remains that assessee did file return of income u/s. 139 of the Act on 19.03.2013. The date of filing of the return is much before than the date of recording of reasons which is 27.03.2019. AO has noted that PAN was searched in the system and DCR of respective year has also been consulted and he had not found the copy of return filed by assessee. In view of the fact of having filed the return of income by the assessee the finding of the Assessing Officer that no return has been furnished by the assessee is wrong and therefore AO has reopened the case by recording a wrong fact. The copy of acknowledgment of return for the relevant year has been made part of this order. Had the Assessing Officer noted the correct facts of filing the return, he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is void ab initio. 4. Arguing on Ground No.12 the ld. AR submitted that assessee had filed return of income on 19.03.2013 and my attention was invited to PB pgs. 1 and 2 where a copy of acknowledgment of return alongwith computation of income was placed. The ld. AR submitted that reopening is bad also on this account as the Assessing Officer has noted that assessee had not filed return of income u/s. 139 of the Act and again my attention was invited to PB pg. 5, where a copy of reasons for reopening of the case was placed. The ld. AR submitted that reopening initiated on the basis of wrong facts is bad in law and reliance in this respect was placed on the following judgments: 1. Mumtaz Haji Mohammad Memon vs. ITO, Ward 6(1)(1), reported in 408 ITR 268 (Guj). 2. Sagar Enterprises vs. ACIT, reported in 257 ITR 335 (Guj.) 6. The ld. AR further placed his reliance on an order of Hon'ble Allahabad High Court in the case of Shri Sunil Kumar Rastogi HUF vs. ITO, Writ Tax No. 658 of 2017 where vide order dated 02.12.2019 the Hon'ble Court has held in favour of the assessee under similar facts and circumstances. 6. The ld. DR, on the other hand, submitted that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee is not applicable to the fact to the present case due to the following reasons The case was assessed u/s 147/143(3) of the IT Act on the basis of reasons recorded by the A.O. after obtaining prior approval of the prescribed authorities. As per the reasons to believe recorded by the A.O. an amount of Rs.51,95,000/- which was the amount reflecting in the information furnished by Sub-Registrar, Kanpur had escaped assessment for the year under consideration. A letter u/s 133(6) of the IT Act, 1961 was issued to the assesse requiring to furnish the information which was not responded to by the assesse within the stipulated time because of which proceedings were initiated. During the course of assessment proceedings, the assessee was required to furnish various details and as per notice dated 29.10.2019 the assessee was specifically required to furnish the source of investment for purchase of property during Financial Year 2011-12. The assessee filed the reply vide which she submitted that she had taken un-secured loan from Mr. Mohit Gupta and Mrs Rama Gupta of Rs. 5,00,000/- each on 04.11.2011 and 12.11.2011 in her bank account. However, the assesse failed to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the sum credited may be charged to income-tax as the income of the assessee of that previous year. Thus on going through the above provisions of section it may be inferred that the CIT (A) has confirmed the addition of Rs. 10,70,000/- which was not explained by the assessee in either assessment proceedings or appellant proceedings. The above legal issue therefore ceases to exist and the principle laid down in Jet Airways is therefore not applicable to the present ceases the addition confirmed by the CIT(A) is the same which was made by the A.0. To sum up, the case was selected for reassessment to verify the source of investment in purchase of immovable property which the assessee submitted to have purchased through two loans of Rs 5 lacs which claim however, the assessee could no corroborate through any documentary evidence nor the assessee could establish any nexus between the loans taken purchase of properly is either assessment or appellate proceedings. The addition of Rs 10,70,000/- made by the AO. confirmed by the CIT (A) is the same i.e. investment in purchase of property this was held to be from undisclosed sources which the assessee could not sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is 27.03.2019. The Assessing Officer has noted that PAN was searched in the system and DCR of respective year has also been consulted and he had not found the copy of return filed by assessee. In view of the fact of having filed the return of income by the assessee the finding of the Assessing Officer that no return has been furnished by the assessee is wrong and therefore I hold that Assessing Officer has reopened the case by recording a wrong fact. The copy of acknowledgment of return for the relevant year has been made part of this order. Had the Assessing Officer noted the correct facts of filing the return, he would have verified the fact of escapement of income from the return of income which he has not done therefore the notice issued u/s. 147 is not legally tenable. 9. The Hon'ble Allahabad High Court in the case of Shri Sunil Kumar Rastogi HUF (Supra) vide order dated 02.12.2019 has cancelled the notice issued u/s. 148 under similar facts and circumstances. The findings of Hon'ble Court are reproduced below: The writ petitioner has approached this Court challenging a notice dated 30th March, 2017, issued under section 148 of the Income Tax Act, 1961, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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