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TMI Blog2022 (8) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous u/s.263, by relying upon a purported mis-match list, subsequently procured by her from the ETO, unmindful that the Id. lTO had concluded reassessment based on material available on record, at the time of recording of reasons u/s.148 and duly approved by the then Pr.CIT u/s.151. 3. That by holding that the ITO failed to obtain the mis-match list from the ETO, at the time of reassessment, to ascertain the parties from whom bogus purchases were made, the Id. Pr.CIT, in a way, has held the order u/s.148 itself as bad in law, thus leaving no scope to further revise the same under section 263. The impugned order, is therefore, inherently illegal. 4. That by any angle, when the Id.AO had made every possible enquiry and also examined purchases made from all parties, inclusive of parties mentioned in the mis-match list, there remained no ground for the Id. Pr. CIT to still set aside the reassessment order u/s.263, also losing sight of the fact that reassessment, in this case, was preceded by a regular assessment made earlier. 5. That the order under appeal is wholly against law and facts of the case." 3. Brief fact is that the assessee is a proprietor of M/s P.K. & Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rejected." 6. The assessee during the hearing before me has contested that out of the 74 parties mentioned in the mismatch list forwarded by the Excise and Taxation Department, the repetitive names in 3 cases need to be excluded, there are 9 cases where the names of the parties have not been mentioned. It is only written as record not found. With respect to the remaining parties bills and copies of account were submitted. It is apparent that in the impugned proceedings before the AO, the mismatch list was not obtained by the AO from the Excise & Taxation Department. He made misdirected Inquiry about eight entities from whom purchases were not made and who did not figure in the mismatch list. The AO thus failed to make the Requisite verifications as he did not even obtain and did not have the mismatch list to make the necessary enquiries. In view of this fallacy and failure, the assessment order dated 29.12.2016 is held to be erroneous and prejudicial to the interest of revenue. 7. Considering the entirety of facts, it is held that the order made u/s 143(3) is erroneous in so far as it is prejudicial to the interest of revenue. Clause (a) of Explanation 2 of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade during the period under consideration froml.4.2008 to 31.3.2009 from the following firms: i. M/ Sandeep Rice and General Mills Jalalabad/Guru Harsahai/Ferozepur. ii. M/s. Ganesh Rice & General Mills, Jalalabad/Guru Harsahai/Ferozepur. iii. M/s Jagdish Arora, Jalalabad/Guru Harsahai/Ferozepur. iv. M/s Galhotra Industries, Jalalabad/Guru Harsahai/Ferozepur. v. M/s J B Agro Mills, Jalalabad/Guru Harsahai/Ferozepur. vi. M/s D .M. Agro Mills, vii. M/s M S Agro viii. Malikiat Trading Co. In response to the same, the counsel of the assessee has submitted that during the period from 01.04.2008 to 31.3.2009, the assessee has not made any purchases from the above parties. Subsequently, a letter bearing No.1112 dated 20.12.2016 was also issued to the Asstt. Director of Income Tax(lnv) Jalandhar with the request to provide complete names and address of the firms/parties from which the assessee has made bogus purchases during the period under consideration so that the purchases may be verified from these parties. In response to same, the ADIT (lnv) Jalandhar vide her office letter No. DDIT(Inv)/JAL/Misc/2016-17/1660 dated 21.12.2016 has informed that "the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also from AETC but there was no further information about such bogus parties. The ld AO had verified the purchase & the sale as per report received from authority. The verification of the bills and vouchers were completed during the assessment proceeding. Accordingly, the assessment vide order on 29.12.2016 was completed. The ld. Counsel has drawn our attention in two notices in APB, Page 45-46. The notices were issued by the ITO, Kapurthala U/s 133(6) related assessee for calling information about the sellers (details are mentioned above), letter dated 20.12.2016, addressed to the Assistant Director of Income Tax (Inv), Jalandhar and another notice was issued to the Asstt. Excise and Taxation Commissioner (AETC), Aman Nagar, Kapurthala on dated 14.12.2016. Both the letters are kept in the record. 7. The ld. counsel of the assessee Mr. Bhasin strictly pointed out that the notice was issued u/s 148 on that basis of approval taken u/s 151. The ld. AO investigated the matter during the assessment proceedings by sending a letter to the ADIT (Inv.) and the AETC, Kapurthala. In office note the ld. AO properly applied his mind for verification of the bogus purchase. He further, mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was already under challenge before the concerned appellate authorities, it was no good and valid information to invoked any proceeding as matter is sub judice. 10. The learned CIT DR argued In favour of revenue and relied on the order of revenue authorities. Related the reopening under section 148 and section 263 under there is same issue, bogus purchase. The learned CIT DR was unable to bring any country fact against the argument of ld. Counsel. 11. We heard the rival submission and relied on the documents available in the record and also considered the order of revenue authorities and the judgement of different courts. The learned PCIT had issued notice for setting aside the order of assessing authority passed under section 148 of the Act. Considering the fact of the case the reopening was made under section 148 was related to bogus purchase from the parties mentioned above. The same issue was further agitated by issuing notice under section 263 of the Act. The same PCIT approved the reopening under section 151 by considering the issues. During the hearing the learned counsel produced "office note" of revenue department which is mentioned above. After a quick look on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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