9911796707
TMI Blog2023 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Miscellaneous Application No. 665 of 2021 in SMW(C ) No. 3 of 2020, the period of filing appeal during the COVID- 19 pandemic is to be excluded for the purpose of counting the limitation period. In view of this, the appeal is treated as filed within the limitation period. 3. The assessee has challenged the order of Ld. CIT(A) on merit as well as on legal issue. The assessee has raised legal issue vide application dated 30.08.2022 which is extracted as under: "For that the Ld. Commissioner of Income Tax (Appeals)-5, Kolkata failed to appreciate that none of the conditions precedent existed and/or have been complied with and/or fulfilled by the Ld. Income Tax Officer, Ward-13(4), Kolkata for his assumption of jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reason recorded, the AO referred to the transactions in the bank account of the third party and no where the AO has recorded satisfaction/conclusion that income of assessee has escaped assessment. The Ld. A.R therefore submitted that these are only surmises and presumption on the part of the income and nowhere reason to believe has been recorded qua escaped income. The Ld. A.R. submitted that in absence of proper reasons or satisfaction being recorded by the AO, the reopening is bad in law and so is the consequent order. In defense of his arguments the Ld. A.R relied on the decision of Hon'ble Supreme Court in the case Sheo Nath Singh vs. Appellate Assistant Commissioner of Income Tax reported in [1971] 82 ITR 147 (SC) and also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the reason recorded u/s 148(2) of the Act a copy of which is placed at page 28 of PB. We find from the perusal of the reasons that AO has simply discussed the issue that information was received from ADIT (Inv), Unit-4(1), Kolkata vide letter dated 26.03.2018 and the fact that the assessee has received Rs. 10,00,000/- from Surya Commotrade Pvt. Ltd. through its bank account. We note that the AO has discussed in reason the transaction in the bank account of third party and no where recorded a satisfaction that the amount which is received by the assessee of Rs. 10,00,000/- has escaped assessment. Thus, we find merit in the contentions of the Ld. A.R. that reason recorded are based upon presumption and surmises without recording a clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief that the income of the assessee for the year under consideration has escaped assessment. The necessary ingredients of forming belief by the Assessing Officer of escapement of income are missing in this case. Therefore, the reopening of the assessment being bad in law, the assessment order is quashed. The consequential additions made by the Assessing Officer are accordingly ordered to be deleted." Similarly we note that there is no application of mind by the AO to the information received and whatever has been supplied to the AO has been taken as it is without any independent application of mind by AO and thus AO has failed to demonstrate any live link between the material received and formation of reason to believe that income had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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