9911796707
TMI Blog2022 (12) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... returnable forthwith. Learned advocate Mr. Karan Sanghani for M.R. Bhatt & Co. waives service of Rule on behalf of the respondent. 1.2 Heard learned advocate Mr. S. N. Divatia for the petitioner and learned senior advocate Mr. M. R. Bhatt for M. R. Bhatt & Co. assisted by learned advocate Mr. Karan Sanghani for the respondent. 2. The challenge in this Special Civil Application is directed against notice dated 29.3.2019 issued to the petitioner-assesses under section 148 of the Income Tax Act, 1961, seeking to reopen the assessment for the assessment year 2013-2014. Also prayed is to set aside order dated 9.9.2019 whereby the assessing officer rejected the objections lodged by the petitioner against reopening of the assessment. 2.1 It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by this amount in total three transactions on various dates from the account of Sarthak Enterprises and debited the same amount on the same dates to the account of Munjal B. Shah. The office of DDIT (Inv), Unit-1(1), Ahmedabad has called for the bank statement of the assessee from Bank of India, Panchvati Branch, Ahmedabad and verified the same. On verification of the bank statement of the assessee, it was noticed that these transactions are correct. Accordingly, summons u/s.133 (1A) of the 1.T.Act was issued to the assessee and the details were called for. On verification of submissions filed by the assessee, it is revealed that the amount of Rs.1,40,00,000/- which is in question, remains unexplained in the hands of the assessee." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie belief based on subjective satisfaction and that the record must reflect that the belief was not mere a suspicion. 3.6 It was submitted that in the present case, the reassessment was made clearly after four years from the end of the relevant financial year. Therefore, the first Proviso to section 147 of the Act would apply and in that view, additional requirement was on the part of the income tax officer to be satisfied was that there was failure or omission on part of the assessee to disclose fully and truly material facts or failure to furnish return of income. 4. Learned senior advocate for the respondent relied on the contents of the affidavit-in-reply to contend that the account of the petitioner during the financial year 2012- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax vs. Rajesh Jhaveri Stock Brokers Private Limited [2007 (291) ITR 500 SC] and Yogendrakumar Gupta vs. Income Tax officer vs. Income Tax Officer [(2014) 366 ITR 186]. 5. For the purpose of proceedings under sections 147 and 148 of the Act, seeking to reopen the assessment, there must be escapment of income in the hands of the assessee in the year under consideration. Unless the facts show that any income had escapbed from being taxed, the powers could not be validly exercised. The officer must be satisfied on the basis of the objective fact that income chargeable to tax has escaped assessment in respect of the year under consideration. 5.1 The record show that subsequent to the impugned notice under section 148 of the Act, assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was executed on 27.9.2000. 5.3 In response to the summons under section 131(1A) of the Act dated 16.08.2018, the petitioner explained that there was a development agreement entered into between M/s. Sarthak Enterprise and M/s. Savy Unispace Pvt. Ltd. M/s. Sarthak Enterprise received certain amountg as advances from M/s. Savy Unispace Pvt. Ltd. which was partially withdrawn by the petitioner who was partner in the firm M/s. Sarthak Enterprise. The petitioner produced copy of the account from M/s. Sarthak Enterprise alongwith copies of acknowledgment of the returns filed by the firm, copies of accounts of M/s. Savy Unispace Pvt. Ltd was also produced and the bank account of M/s. Savy Unispace Pvt. Ltd was also shown duly reflecting the so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of section 147 of the Act. Under the circumstances, on the aforesaid ground alone, the impugned reassessment proceedings deserve to be quashed and set aside." 6.3 The above proposition of law applies in this case. Furthermore, in the communication whereby the reasons recorded were supplied, no satisfaction was recorded by the assessing officer that the income chargeable to tax has escaped assessment. Not only the said requirement was not satisfied, but as seen above, there was no actual escapment of income as well. The formation of opinion by the assessing officer for the purpose of exercise of powers to reopen the assessment could be said to have been vitiated to be rendered bad in law. 7. For all the aforesaid reasons, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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