TMI Blog2023 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cut finding as to escapement of income. The case of the assessee finds support from the decision of MLB Commerical Pvt. Ltd [ 2021 (3) TMI 1396 - ITAT KOLKATA] . Also 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 escaped assessment. The case of the assessee find support from the decision in the case of Meen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 jurisdiction u/s 147 of the Income Tax Act, 1961 in the instant case and the alleged assessment order dated 27.12.2018 passed u/s 137/143(3) of the Act in pursuance to the impugned notice dated 29.03.2018 issued u/s 148 of the Act is therefore ab initio void, ultra vires and null in law. 4. The Ld. A.R. submitted before the Bench that the issue raised in additional grounds of appeal is emanating out of facts and record as available in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of Co-ordinate Bench of Gauhati in the case of MLB Commercial Pvt. Ltd. vs. ITO in ITA No. 459/Gau/2019 for AY 2011-12 dated 19.03.2021. The Ld. A.R submitted that in both the above decisions, the issue has been decided in favour of the assessee on the ground of reopening where the AO has not recorded any satisfaction as to the income escaping the assessment. The Ld. Counsel for the assessee also took the alternative pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cut finding as to escapement of income. The case of the assessee finds support from the decision of Co-ordinate Bench of Gauhati in the case of MLB Commerical Pvt. Ltd. (supra). The operative part is reproduced as under: 8. I have heard the rival contentions and gone through the records. In this case as noted above, the Assessing Officer received some information from the Investigation Wing that the assessee had brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote 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 escaped assessment. The case of the assessee find support from the decision of Delhi High Court in the case of Meenakshi Overseas Pvt. Ltd. (supra) wherein it has been held that where there is no independent application of mind by the AO to tangible material and conclusion of AO was reproduction of the investigation report, reasons failing to demonstrate link between tangible material and formation of reason to believe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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