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TMI Blog2023 (12) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... otice that the appeal is barred by limitation by 11 days and accordingly ld. Counsel for the assessee was asked to explain the delay. Ld. Counsel submitted that due to certain reasons beyond the control of the assessee, this appeal could not be filed within due time. The ld. A.R. stated that the Memorandum of Appeal was sent for assessee's signature however, the assessee being not well, therefore, this minor delay has occurred. The ld. D.R. left the issue of condonation of delay to the wisdom of the Bench. 3. After hearing both the sides and taking into consideration of the reasons for delay, I observe that the delay is for a reasonable cause and accordingly the same is condoned. 4. The assessee has challenged reopening of assessment by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 148(2) of the Act , a copy of which is placed at page no. 2 of the assessment order, that the reasons were recorded without application of mind and in a very casual and mechanical manner. The said reasons are extracted below for the sake of ready reference: The assessee is regularly assessed in Ward 50(4), Kolkata. The assessee filed its return of income on 31.03.2014 declaring gross total income of Rs. 3,00,564/- for the A:Y- 2013-14 which was processed u/s 143(1)of the IT Act on 22.08.2014. Information has been received from DIT(Inv), Kolkata, dated 07.01.2015 , the assessee has taken entry of bogus LTCG for an amount of Rs. 8,30,000/- during the F:Y: 2012- 13. The assessee has earned profit of penny stock amounting to Rs. 8,30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with these entry operators. The return data has been perused. The assessee has reported in its return under presumptive - 4S and shown business income of Rs. 2,85,400/- and income from other source of Rs. 15,164/-. The assessee has not shown any Long Term Capital Gain. On examination of details of report, it has found that {here has not been any real transaction in respect of penny stock and everything was created artificially in order to give profit / bogus Long Term Capital Gain to the assessee for consideration of money paid by the assessee out of his / her undisclosed income which was not included in her return income. Hence, after due application of mind, I have reasons to belief that there is live link with the information receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions of the ld. A.R. that the reasons have to be read as they are recorded and there has to be an independent application of mind by the AO and a objective satisfaction has to be recorded whereas the AO acted on the borrowed satisfaction which is a clear-cut non-application of mind by the AO. The case of the assessee finds support from the decision of the Hon'ble Bombay High Court in the case of Hindustan Lever Limited -vs.- R.B. Wadkar, Asst. CIT reported in 268 ITR 332(Bom), wherein it has been held that the reasons have to be read as they are recorded and it cannot be substituted. The Hon'ble Court has held that there has to be satisfaction of the Assessing Officer for reopening of the assessment and reopening cannot be made for borrow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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