TMI Blog2019 (2) TMI 2061X X X X Extracts X X X X X X X X Extracts X X X X ..... ments Pvt. Ltd. [ 2018 (4) TMI 1287 - BOMBAY HIGH COURT] is distinguishable from the present case. As mentioned earlier, the AO reopened the assessment which was processed u/s 143(1) of the Act. In the case of ACIT v. Rajesh Jhaveri Stock Brokers Pvt. Ltd. 2007 (5) TMI 197 - SUPREME COURT] held that intimation u/s 143(1)(a) is not an assessment and held valid the notice issued u/s 148. In the case of Kone Elevator India P. Ltd[ 2011 (3) TMI 1340 - MADRAS HIGH COURT] , CIT v. Ideal Garden Complex P. Ltd. [ 2011 (9) TMI 731 - MADRAS HIGH COURT] it is held that in the case of return of income processed u/s 143(1), the only condition to be satisfied for reopening is taxable income has escaped assessment and the assessee s plea that no fresh material before the AO warranting reopening, is not relevant. Cross objection filed by the assessee is dismissed. - ITA No. 4771/MUM/2017, C.O. No. 314/MUM/2018 (ITA No. 4771/MUM/2017) Assessment Year : 2012-13 - - - Dated:- 28-2-2019 - Shri Pawan Singh (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For the Revenue : Mr. Rajore Satishchandra R., DR. For the Assessee : Mr. Rakesh Joshi, AR. ORDER PER N.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting provisions of section 40A(3). 7. The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored. 3. Briefly stated, the facts are that the assessee filed her return of income for the assessment year (AY) 2012-13 on 21.09.2012 declaring total income at Rs.8,82,701/-. The return of income was processed u/s 143(1) of the Act. The Assessing Officer (AO) received an information from the Director General of Income Tax (Investigation), Mumbai that consequent to a search carried out in the case of Shri Pravin Kumar Jain on 01.10.2013, it was found that Shri Jain had floated various companies, which were engaged in the business of providing accommodation entries in the form of bogus unsecured loans, bogus purchases and bogus capital gains etc. and the assessee was one of the beneficiaries of the bogus concerns operated and controlled by Shri Jain. The assessee had obtained, as per the AO, bogus loans from the following concerns, controlled by Shri Jain, which were in the business of providing accommodation entries and the details are as under: Name of the Entity A.Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and copies of bank statement of the concerned parties. Also it is observed by him that the genuineness of the transaction is established from the fact that both the acceptance and repayment of loan has been through banking channels. Thus, the Ld. CIT(A) found that the assessee had filed sufficient documents to prove the genuineness of the loan transaction during the year under consideration. Considering the above, he deleted the addition of Rs.1,40,00,000/- made by the AO u/s 68 of the Act. 5. Before us, the Ld. DR relies on the decision in Pavankumar M. Sanghvi v. ITO (2018) 90 taxmann.com 386 (Guj) 97 taxmann.com 398 (SC) and ITO v. Lal Chand Yadav (2017) 82 taxmann.com 429 (JaipurTrib) (TM). Relying on the above decisions, it is argued by him that in the instant case the assessee has not satisfied the conditions laid down u/s 68 regarding cash credit and the order passed by the CIT(A) be set aside. 6. On the other hand, the Ld. counsel of the assessee relies on the decision in Smt. Nisha Umashankar Chaudhary v. DCIT (ITA No. 6982/M/2016 for AY 2012-13 and ITA No. 6983/Mum/2016 for AY 2007-08); ITO v. M/s Shreedham Construction Pvt. Ltd. (ITA No. 3754/Mum/2017 for AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnished by the assessee to support the cash credit. So far as the impugned loan transactions are concerned, the Pravin Kumar Jain s statement has got only a secondary connection, since the original owners of the concerns have confirmed the loan transactions. Hence, in my view, the reliance placed by the AO exclusively on the statement of Shri Pravin Kumar Jain may not be justified, particularly in view of the facts that the assessee has discharged the primary responsibility placed upon her shoulders . In M/s Shreedham Constructions Pvt. Ltd. (supra), the Tribunal has confirmed the order passed by the Ld. CIT(A). In the case of Veedhata Towers Pvt. Ltd. (supra), the Hon ble Bombay High Court referring to the decision in CIT v. Gagandeep Infrastructure Pvt. Ltd. held that the proviso to section 68 of the Act has been introduced by the Finance Act, 2012 w.e.f. 01.04.2013 and therefore, it would be effective only from the assessment year 2013-14 onwards and not for the earlier assessment years. Further referring to the decision in the case of CIT v. Lovely Exports (P.) Ltd. (2009) 319 ITR (St.) 5 (SC), it is held that this would not entitle the revenue to invoke section 68 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied to the assessee and as extracted in the order, reads as under: It was intimated that search action was conducted u/s 132 of the I.T .Act, 1962 on 25/11/2009. In the case of Mahasagar Securities Pvt. Ltd., where it is found suspicious transaction taken place in the bank account of the company and its related company . The Hon ble High Court held : 13. In this case, the reasons as made available to the Respondent Assessee as produced before the Tribunal merely indicates information received from the DIT (Investigation) about a particular entity, entering into suspicious transactions. However, that material is not further linked by any reason to come to the conclusion that the Respondent Assessee has indulged in any activity which could give rise to reason to believe on the part of the Assessing Officer that income chargeable to tax has escaped Assessment. It is for this reason that the recorded reasons even does not indicate the amount which according to the Assessing Officer, has escaped Assessment. This is an evidence of a fishing enquiry and not a reasonable belief that income chargeable to tax has escaped assessment. 14. Further, the reasons clearly sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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