TMI Blog2023 (3) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee had been in a very loud and clear manner categorically denying the fact that the alleged two bank accounts and the transactions of deposit in cash/transfer therein are not his and has always disowned the same. He has taken the possible steps of making complaint to the Police station seeking appropriate redressal and enquiry on the matter by bringing the relevant facts on record. We note that both Ld. AO as well as Ld. CIT(A) have not undertaken any exercise of enquiry or examination on the assertions made by the assessee nor have made any attempt to find out the status of any action taken by the Police on the complaints made by the assessee. Thus chronology of events, provisions of the Act and the lack of adequate enquiries on the part of the authorities below despite possible actions undertaken by the assessee, we are of considered view to allow the grounds of appeal, both on the legal issues raised and on the merits of the case holding that assessment order is bad in law and no addition is called for as alleged by the Ld. AO. Appeal of the assessee is allowed. - ITA No. 2507/Kol/2019 - - - Dated:- 17-3-2023 - SHRI RAJPAL YADAV , VICE PRESIDENT And SHRI GIRISH AGRAW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2017 are reproduced as under: As per information available with the department, the assessee is the beneficiary of Rs. 2,46,61,795/- that was deposited in cash in the bank account of Shri Kamal Sharma (PAN: CEUPS1428G), during FY 2009-10 through ICICI Bank which was in turn transferred to the assessee's (M/s. Sarita Trading Co/Suresh Joshi) ICICI bank account bearing No. 62790501311. The sum of Rs. 2,46,61,795/- was not offered for taxation during AY 2010-11. In view of the above findings, I have reason to believe that the Total income of Rs. 2,46,61,795/- has escaped assessment within the meaning of section 147 of the I.T. Act, 1961. 3.1. Statutory notices u/s. 143(2) and 142(1) of the Act were served on the assessee, which was duly replied by the assessee. In this respect, assessee submitted that during the year under consideration, he had only one bank account with Punjab National Bank, A/c. no. 0089001700002490. Assessee also submitted that he was not aware of any other bank accounts which were opened by using his details. He also submitted a copy of complaint filed before the Police Station Burrabazar, Kolkata referring the matter of bank accounts which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting approval are reproduced below : 4.2. From the above, Ld. Counsel strongly asserted that proposal by Ld. AO was made on 24.03.2017. On the said proposal the approval was granted vide letter dated 27.03.2017. This letter was received in the office of the Ld. AO on 31.03.2017 along with the 'assessment folder' as noted in the said letter itself. He pointed that date of receipt is duly stamped. Against it, it is noted that Contents not verified . Ld. Counsel asserted that contrary to these dates the notice u/s. 148 of the Act has been issued on 29.03.2017 which states that this notice is being issued after obtaining the necessary satisfaction of the Addl. Commissioner/Commissioner of Income Tax/Chief Commissioner of Income Tax . Thus, Ld. Counsel contended that when the letter granting approval for the proposal made by Ld. AO for action u/s. 147/148 of the Act have been received by his office only on 31.03.2017 along with assessment folder, the notice issued prior to 31.03.2017 i.e. on 29.03.2017 is without obtaining the prior approval as mandated u/s. 151 of the Act. According to him, the notice has been issued prior to the receipt of approval from the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly submitted that no such addition can be made on the basis of any material or evidence which is sought to be relied on by the Ld. AO unless he has confronted the assessee with such material. Ld. Counsel submitted that Ld. AO has never supplied any material on the basis of which he has alleged the deposit of cash of the above stated amounts in the two bank accounts of ICICI bank which in clear violation of principles of natural justice. Ld. Counsel asserted that Ld. AO as well as Ld. CIT(A) have failed to consider the copy of General Diary (GD) and First Information Report (FIR) filed on 03.07.2017 and 03.10.2017 respectively with Burrabazar Police Station, Kolkata against Shri Kamal Sharma who is suspected to have forged his signature and use the said accounts fraudulently. He also submitted that assessee was never given an opportunity to cross examine Shri Kamal Sharma and without providing copy of the impugned bank statements to the assessee which again is in violation to the principles of natural justice. Ld. Counsel further stated that Ld. AO could provide a copy of the bank statement of only one of the account and for the other has not been provided till date. From the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the reasons recorded by the AO that it is a fit case for the issue of such notice. In the present case, the communication of the satisfaction by the Ld. Pr. CIT-12, Kolkata on the proposal made by the Ld. AO for taking action u/s. 148 of the Act was communicated to the AO only on 31.03.2017 as is evidenced by the letter dated 27.03.2017 extracted above. However, the notice u/s. 148 has been issued on 29.03.2017 which is prior to the date of receipt of communication from the office of Ld. Pr. CIT-12, Kolkata towards his satisfaction that it is a fit case for the issue of such notice. Accordingly, in our considered view, we find force in the submissions made by the Ld. Counsel, to hold that the notice issued u/s. 148 of the Act is not in accordance with the provisions contained in section 148 to 151 of the Act, rendering the entire assessment proceeding invalid. 8. On the merits of the case, we note that from the very first instance, assessee had been in a very loud and clear manner categorically denying the fact that the alleged two bank accounts and the transactions of deposit in cash/transfer therein are not his and has always disowned the same. He has taken the possible ..... X X X X Extracts X X X X X X X X Extracts X X X X
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