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TMI Blog2022 (9) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the said order dated 7th April, 2022 is devoid of reasons and without any discussion on the contentions raised by the petitioner in their objections dated 28th March, 2022 to the notice issued by the assessing officer under Section 148A(b) of the Act. After having held so and quashing the order dated 7th April, 2022, the learned Single Bench remanded the matter back to the assessing officer to pass a fresh speaking order. Aggrieved by such direction the appellant is before us by way of this appeal. We have elaborately heard Mr. Subash Agarwal, learned counsel for the appellant and Mr. Tilak Mitra, learned standing counsel appearing for the respondent/revenue. So far as the first portion of the order passed by the learned Single Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer has indirectly accepted the explanation given by the appellant/assessee that they have not indulged in fictitious derivative transaction. We say so because in the order dated 7th April, 2022 in paragraph 4 therein, the assessing officer alleges that prima facie the appellant/assessee has taken accommodation entry by way of fund transfer from M/s. Brightmoon Suppliers Pvt. Ltd. which is a different company. Thus, the order passed under Clause (d) of Section 148A of the Act is not based on the reason for which notice dated 22nd March, 2022 was issued under Section 148A(b) of the Act. Therefore, the order dated 7th April, 2022 is illegal and has to be held to be wholly unsustainable. In such factual position, the necessity to remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical nature etc. Therefore, the department was advised to effect due verification and opportunity of being heard given to the tax payers before initiating proceedings under Section 148/147 of the Act. Thus, in the preceding paragraph we have pointed out the factual position in the case on hand and it appears that proper verification was not done on the information which was available with the assessing officer at the time of issuance of notice under Section 148A(b) of the Act which has led to an erroneous order dated 7th April, 2022 being passed. In Divya Capital One (P.) Ltd. vs. Assistant Commissioner of Income Tax reported in [2002] 139 taxmann.com 461 (Delhi), the Court had considered the new re-assessment claim and held as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be lightly resorted to so as to reopen assessment and this information cannot be a ground to give unbridled power to the revenue. In fact, in the case on hand, the information has been lightly used which resulted in issuance of notice. As pointed out earlier, the assessee had submitted the explanation to the notice along with documents in support of their claim. The assessing officer has given up the said allegation which formed the basis of the notice and proceeded on a fresh ground for alleging that the transaction with some other company was an accommodation entry. Therefore, on that score also the order dated 7th April, 2022 is liable to be set aside in its entirety without giving any opportunity to reopen the matter on a diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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