Ashok Goel, Ludhiana V. ITO, Ludhiana

ITA 110/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9959 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 18-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: S K MAINGI
• Keywords: Reopening of assessment; Gift; Opportunity of being heard; Reason to believe
• Section: 69C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE RESIDENT ITA NO.110/CHD/2016 (ASSESSMENT YEAR : 2005-06) ASHOK GOEL, VS. THE INCOME TAX OFFICER III(2), OLD GRAIN MARKET, LUDHIANA. MULLANPUR, DISTT. LUDHIANA. PAN: ABWPP1163A APPELLANT BY : SHRI S.K. MAINGI RESPONDENT BY : SHRI S.K. MITTAL, DR DATE OF HEARING : 22.04.2016 DATE OF PRONOUNCEMENT : 19.05.2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, LUDHIANA DATED 18.12.2015 RELATING TO ASSESSMENT YEAR 2005-06. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. THAT THE LD. CIT(A) ERRED IN CONFIRM ING THE ADDITION OF RS.7,91,840/- ON WRONGLY RE-OPENING THE CASE U/S.148 WHEREAS ON SIMILAR WAY OF RE- OPENING, IN THE CASE OF SMT. SARIKA GOEL, ASSESSEE'S DAUGHTER, PROCEEDINGS U/S. 148 QUASHED BEING INFORMATIVE / IRREGULAR. 2 2. THAT THE PROCEEDINGS U/S. 148 STARTED WITHOUT IN POSSESSION OF ORIGINAL INCOME TAX RETURN FILED ON 25/07/2005 VIDE RECEIPT NO.511100211FOR WHICH A.O. COULD NOT GIVE INSPECTION OF THE ORIGINAL DOCUMENTS AND DECIDED THE CASE WITHOUT OPPORTUNITY OF BEING HEARD. 3. REASONS RECORDED SUPPLIED FOR RE-OPENING THE CASE WERE ON BEHEST OF D.D.I.(INVT.). IT WAS RE-OPENED O N SATISFACTION OF D.D.I. AND NOT HAVING REASONS TO BELIEVE OF A.O. IT IS AGAINST THE SPIRIT OF HON'BLE PUNJAB & HARYANA HIGH COURT'S CASE LAW OF PARAMJIT KAUR 168 TAXMAN 39. 4. RECENT DECISION OF HON'BLE ITAT CHANDIGARH BENCH IN APPEAL NO.282 & 389 OF 2014 PRONOUNCED ON 18/11/2015 AND PUBLISHED UNDER CITATION NO. (2016) 65 TAXMAN.COM 2016 IN THE CASE OF SUBASH CHANDER GOEL VS. ITO WARD 1(3), CHANDIGARH IS VERY MUCH A COVERED CASE FOR OUR CASE FOR QUASHING PROCEEDINGS U/S. 148. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. THE LEGAL ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL RELATES TO VALIDITY OF REOPENING OF THE ASSE SSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (IN S HORT THE ACT). FOR ASSESSMENT YEAR 2005-06, THE ASSE SSEE (INDIVIDUAL) SUBMITTED HIS RETURN OF INCOME ON 25.7 .2005 DECLARING TOTAL INCOME AT RS,1,79,563/-. THE RETUR N WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. SUBSEQU ENTLY, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 1 48 OF THE ACT, DATED 31.3.2010 AFTER RECORDING REASONS TH AT THE 3 ASSESSEE HAD INCURRED EXPENDITURE ON ROKA AND ENGAGEMENT FUNCTIONS OF HER DAUGHTER SOLEMNIZED ON 29.8.2004, OUT OF HIS UNEXPLAINED INCOME AND INCOME HAS ESCAPED ASSESSMENT FOR THE PERIOD RELEVANT TO THE ASSESSMENT YEAR 2005-06. THEREAFTER, THE ASSESSING OFFICER ISSUED STATUTORY NOTICES UNDER SECTIONS 142 (1) AND 143(2) OF THE ACT. ON 15.11.2010, THE ASSESSEE REQ UESTED THE ASSESSING OFFICER TO SUPPLY THE REASONS RECORDE D FOR REOPENING OF THE ASSESSMENT. THE ASSESSING OFFICER VIDE HIS LETTER DATED 13.12.2010 ASKED THE ASSESSEE AS T O WHY THE EXPENSES INCURRED AMOUNTING TO RS.7 LACS ON ROK A AND ENGAGEMENT FUNCTIONS SHOULD NOT BE TREATED AS INCO ME FROM UNDISCLOSED SOURCES. IN RESPONSE TO THE ABOV E QUERY, THE ASSESSEE SUBMITTED A DETAILED REPLY ON 13.12.2010. THE ASSESSING OFFICER DID NOT FIND ANY MERIT IN THE ABOVE REPLY OF THE ASSESSEE AND OBSERVED THA T THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF EXPENDITUR E MADE ON ROKA AND ENGAGEMENT FUNCTIONS OF HIS DAUGHTER MS.SARIKA JAIN SOLEMNIZED ON 29.8.2004. THE ASSES SING OFFICER FURTHER OBSERVED THAT THE ASSESSEE HIMSELF HAD ACCEPTED BEFORE THE ASSISTANT DIRECTOR OF INCOME TA X (INVESTIGATION) III, LUDHIANA THAT HE HAD INCURRED EXPENSES ON ENGAGEMENT CEREMONY AS UNDER : (I) PAYMENT TO HOTEL RS.25,000/- (II) SHAGUN AT RING CEREMONY RS.5,00,000/- (III) OTHER EXPENSES ON ACCOUNT OF SWEETS, FRUITS AND GIFTS ITEMS AS TV,AC, MOBILE PHONE AND CLOTHES ETC. RS.1,75,000/- 4 (IV) GOLD ARTICLES 164 GM. 4. THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASSESSEE HAD SPENT RS.7 LACS IN CASH AND JEWELLERY OF RS.91,840/-. THEREFORE, THE ASSESSING OFFICER MADE AN ADDITION OF RS.7,91,840/- UNDER SECTION 69C OF THE ACT. 5. ON APPEAL, THE LEARNED CIT (APPEALS) HELD THAT THE REOPENING OF THE ASSESSMENT BY THE ASSESSING OF FICER WAS VALID AND, THEREFORE, THE LEARNED CIT (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE. 6. BEING AGGRIEVED BY THE SAID ORDER OF THE LEARNED CIT (APPEALS), THE ASSESSEE HAS COME UP IN APPEAL BEFOR E THE TRIBUNAL. 7. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AT LENGTH AND HAVE ALSO PERUSED THE MAT ERIALS AVAILABLE ON RECORD. IN THIS CASE, THE REASONS RE CORDED BY THE ASSESSING OFFICER FOR REOPENING UNDER SECTIO N 147 OF THE ACT, ARE AS UNDER : REASON FOR ISSUE OF NOTICE U/S 148 OF THE INCOME TA X ACT, 1961. FOR THE ASSTT. YEAR 2005-06 THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 25.07.2005 DECLARING INCOME OF RS 179563/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT. LATER ON INFORMATION WAS RECEIVED FROM DD1T (INV.)-III, LUDHIANA THAT THE ASSESSEE SH ASHOK GOEL AND HIS DAUGHTER SMT SARITA GOEL, R/O OLD GRAIN MARKET, MULLANPUR, (LDH) HAS SPENT APPROXIMATELY 37 LACS ON HIS ENGAGEMENT AND MARRIAGE CEREMONIES. AS PER COPY 5 OF COMPLAINT MADE BY THE ASSESSEE TO SENIOR SUPRIDENTENT OF POLICE, LUDHIANA, ROKA AND ENGAGEMENT FUNCTION WAS SOLEMNIZED ON 29.08.2004 AN D EXPENDITURE OF RS 7 LACS WAS MADE ON THESE FUNCTION FURTHER, APPROXIMATELY RS 30 LACS WAS SPENT ON THE MARRIAGE CEREMONY HELD ON 16.05.2005. INVESTIGATION OF DDIT (INV.) SHOWS THE EXPENDITURE WAS MADE OUT OF UNEXPLAINED INCOME WHICH ASSESSEE COULD NOT EXPLAIN BEFORE THE INVESTIGATION WING. 2. I AM SATISFIED THAT THE ASSESSEE HAD INCURRED EXPENSES OF RS 7 LACS ON ROKA AND ENGAGEMENT CEREMO NY FUNCTION SOLEMNIZED ON 29.08.2004 OUT OF HIS UN-EXP LAINED INCOME AND INCOME HAS ESCAPED ASSESSMENT FOR THE PE RIOD RELEVANT TO THE ASSTT. YEAR 2005-06. ISSUE NOTICE UNDER SECTION 148 OF THE INCOME TAX A CT, 1961 FOR THE ASSTT. YEAR 2005-06. YOURS FAITHFULLY SD/- ( O.P.SAROHA ) DATED: 31.03.2010 INCOME TAX OFFICER-1 11(2) LUDHIANA 8. THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT AFTER RECORDING THE ABOVE RE ASONS FOR REOPENING OF ASSESSMENT. THE BRIEF BACKGROUND OF THE CASE IS THAT THE DAUGHTER OF THE ASSESSEE MS.SARIKA JAIN MARRIED TO SHRI PIYUSH JAIN ON 16.5.2005. LATER ON , DUE TO STRAINED RELATIONS BETWEEN MS.SARIKA JAIN AND SH RI PIYUSH JAIN, THE DAUGHTER OF THE ASSESSEE LODGED FI R NO.69 DATED 11.5.2009 WITH THE POLICE STATION, DHAK A, DISTT. LUDHIANA. THE APPLICATION FOR REGISTRATION OF 6 CRIMINAL CASE UNDER SECTIONS 406, 498A, 34, 506, 12 0B OF IPC WAS FILED WITH POLICE STATION BY MS.SARIKA JAIN AGAINST HER HUSBAND SHRI PIYUSH JAIN, FATHER-IN-LAW SHRI RAJNISH JAIN, MOTHER-IN-LAW SMT.NEELAM JAIN AND BRO THER- IN-LAW SHRI VISHESH JAIN, ALL R/O 243F, KITCHLU NAG AR, LUDHIANA. IN THE SAID COMPLAINT, IT WAS ALLEGED BY MS.SARIKA JAIN THAT RIGHT FROM THE BEGINNING AFTER THE MARRIAGE, THE ACCUSED PERSONS MENTIONED ABOVE, HAVE BEEN TAUNTED HER THAT SHE HAS NOT BROUGHT SUFFICIEN T AMOUNT OF CASH AND JEWELLERY ACCORDING TO THEIR STA TUS AND ALSO COMPLAINED THAT THE DOWRY ARTICLES GIVEN B Y HER PARENTS WERE OF INFERIOR QUALITY, SO IN THIS WAY, T HE ATTITUDE OF THE IN-LAWS FAMILY TOWARDS HER WAS VERY BAD AND SHE WAS CONSISTENTLY HARASSED FOR MORE DOWRY FR OM TIME TO TIME. IT WAS ALSO ALLEGED BY MS.SARIKA JAI N THAT HER HUSBANDS BEHAVIOR WAS VERY NEGATIVE TOWARDS HE R. SHE ALSO ALLEGED IN THE COMPLAINT THAT ROKA AND ENGAGEMENT FUNCTIONS WERE SOLEMNIZED ON 29.8.2004 A T HOTEL REGENCY, LUDHIANA. IT WAS ALSO ALLEGED BY HE R THAT APPROXIMATELY AN AMOUNT OF RS.7 LACS WAS SPENT ON T HESE TWO FUNCTIONS, WHICH INCLUDED THE CHARGES OF VENUE ETC. AND CERTAIN EXPENSIVE ARTICLES WERE ALSO GIVEN TO H ER HUSBAND AND IN-LAWS. IT IS ALSO APPARENT FROM REC ORD THAT THE STATEMENT OF MS.SARIKA JAIN, DAUGHTER OF T HE ASSESSEE WAS RECORDED BY POLICE AUTHORITIES ON 11.5 .2009 UNDER SECTION 161 CRPC. IN THE SAID STATEMENT, MS. SARIKA JAIN STATED THAT HER FATHER HAD SPENT RS.30 LACS ON THE MARRIAGE AND RS.7 LACS FOR ROKA AND ENGAGEMENT 7 FUNCTIONS. NOW, THE REVENUE HAS MADE THIS EXPENDIT URE, THE BASIS FOR REOPENING THE CASE UNDER SECTION 148 OF THE ACT. 9. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OU T THAT THIS IS A CASE WHERE IN ARRANGED MARRIAGE, THE DISPUTE AROSE AND BOYS SIDE MADE A COMPLAINT WITH THE POLICE AS WELL AS INCOME TAX DEPARTMENT IN SUPPORT OF MARRIAGE EXPENSES. THE LEARNED COUNSEL FOR THE ASS ESSEE SUBMITTED THAT FIR WAS LODGED WITH THE POLICE ON 11.5.2009 BY MS.SARIKA JAIN, DAUGHTER OF THE ASSESS EE, WHERE SOME DETAILS OF EXPENSES OF ROKA CEREMONY WAS GIVEN AT RS.7 LACS IN HER OWN WAY JUST TO FETCH MON EY FROM IN-LAWS. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THIS ESTIMATION MADE BY THE DAUGHTER OF T HE ASSESSEE WAS USED BY THE ASSESSING OFFICER IN THE H ANDS OF SHRI ASHOK GOEL, FATHER OF MS.SARIKA JAIN. ACCO RDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THE PROCEE DINGS UNDER SECTION 147 R.W.S. 148 OF THE ACT IN THE HAND S OF THE FATHER I.E. SHRI ASHOK GOEL ON THE BASIS OF THE ALLEGATIONS MADE BY MS.SARIKA JAIN AGAINST HERE HUS BAND, CANNOT BE MADE THE BASIS FOR MAKING THE ADDITION. IN THE INSTANT CASE, THE GROUND ON WHICH THE RE-ASSESSMENT NOTICE WAS ISSUED IS NOT IN EXISTENCE. IN THE REAS ONS RECORDED BY THE ASSESSING OFFICER, REPRODUCED HERE- IN- ABOVE, THE ASSESSING OFFICER HAS CATEGORICALLY STAT ED THAT AS PER THE COPY OF COMPLAINT MADE BY THE ASSESSEE T O SSP OF POLICE, LUDHIANA, ROKA AND ENGAGEMENT FUNCTIONS WERE 8 SOLEMNIZED ON 29.8.2004 AND EXPENDITURE OF RS.7 LAC S WAS MADE ON THESE FUNCTIONS. FURTHER, APPROXIMATELY RS .30 LACS WERE SPENT ON THE MARRIAGE CEREMONY HELD ON 16.5.2005. SECTION 148(2) OF THE ACT PROVIDES THAT BEFORE ISSUING ANY NOTICE UNDER SECTION 148, THE ASSESSING OFFICER HAS TO RECORD HIS REASONS FOR REOPENING OF THE ASSESSMENT. THE REASONS TO BE RECORDED BY THE ASSE SSING OFFICER MUST RELATE TO HIS BELIEF UNDER SECTION 147 OF THE ACT THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR. IT IS WELL SET TLED LEGAL POSITION WITH REGARD TO INITIATION OF RE-ASSE SSMENT PROCEEDINGS THAT THERE MUST BE MATERIAL FOR BELIEF. FURTHERMORE, THERE MUST BE NEXUS BETWEEN MATERIAL A ND BELIEF. THE REASONS RECORDED BY THE ASSESSING OFF ICER MUST SHOW APPLICATION OF MIND BY HIM. IN THE INSTA NT CASE, THE ASSESSING OFFICER HAS STATED IN THE REASO NS RECORDED FOR REOPENING THAT THE ASSESSEE HAD MADE T HE COMPLAINT TO SSP, LUDHIANA, WHICH IS FACTUALLY INCO RRECT AND WITHOUT ANY BASIS. IN FACT, THE COMPLAINT TO T HE POLICE WAS MADE BY THE DAUGHTER OF THE ASSESSEE. T HUS, IT IS CLEAR THAT THERE WAS NO NEXUS BETWEEN MATERIAL A ND BELIEF. SECONDLY, THE ASSESSING OFFICER HAS NOT AP PLIED HIS MIND WHILE RECORDING THE REASONS FOR REOPENING. IN PARA 2 OF THE REASONS RECORDED BY THE ASSESSING OFFICER, I T IS STATED THAT I AM SATISFIED THAT THE ASSESSEE HAD I NCURRED EXPENSES OF RS.7 LACS ON ROKA AND ENGAGEMENT CEREMO NY FUNCTION SOLEMNIZED ON 29.8.2004 OUT OF HIS UNEXPLA INED INCOME AND INCOME HAS ESCAPED ASSESSMENT FOR THE PE RIOD 9 RELEVANT TO ASSESSMENT YEAR 2005-06. IT IS OBSERV ED THAT THE EXPRESSION APPEARING IN SECTION 147 IS REASON TO BELIEVE, WHICH REFERS TO THE BELIEF. THE SAME PRO MPTS THE ASSESSING OFFICER TO APPLY SECTION 147 TO A PARTICU LAR CASE. IT IS WELL SETTLED THAT THE EXPRESSION IN SE CTION 147 HAS REASON TO BELIEVE IS STRONGER THAN THE WORDS IS SATISFIED. IN THE CASE OF EMIRATES SHIPPING LIN E, FZE VS. ASSISTANT DIRECTOR OF INCOME TAX (2012) 349 ITR 493 (DEL), THE HON'BLE DELHI HIGH COURT AT PAGES 509 AN D 510 HELD AS UNDER : 23. WE HAVE QUOTED THE 'REASONS TO BELIEVE' RECORDE D BY THE ASSESSING OFFICER. FOR INVOKING THIS POWER, IT IS NOT THE REQUIREMENT NOR IS THE PROVISION CONFINED TO CASES OF CONCEALMENT OF INCOME. REASSESSMENT PROVISION EMPOWE RS THE ASSESSING OFFICER TO ASSESS INCOME WHICH HAS ESCAPE D ASSESSMENT. THE OBJECT OF THE SECTION IS TO ENSURE T HAT THE TAXABLE INCOME IS COMPUTED AND CALCULATED AS PER THE ACT AND TAX PAYABLE THEREON IS PAID. AT THE SAME TIME, THE POWE R UNDER THIS SECTION IS NOT UNBRIDLED AND THERE ARE SEV ERAL SAFEGUARDS. ONE OF THE SAFEGUARDS STIPULATED IN THE SECTION ITSELF IS THE REQUIREMENT THAT THE ASSESSING OFFICER MUST RECORD 'REASONS TO BELIEVE'. THIS REQUIREMENT MANDATES THA T THE ASSESSING OFFICER MUST STATE IN WRITING WHY AND FOR WHAT REASON, I.E. CAUSE OR JUSTIFICATION, HE IS INVOKING THE SAID POWER. THE SAID REASONS MUST SATISFY THE STIPULATION THAT THE ASSESSING OFFICER SHOULD HAVE FORMED A PRIMA FACIE BE LIEF THAT INCOME HAS ESCAPED ASSESSMENT. 24. 'REASONS TO BELIEVE' RECORDED BY THE ASSESSING O FFICER ARE A RESULT OF THE SUBJECTIVE SATISFACTION OF THE ASSE SSING OFFICER, BUT IN A WAY HAS TO SATISFY THE TEST OF OBJECTIVENE SS. THE BELIEF MUST BE HONEST AND SHOULD BE BASED UPON SOME MATERIAL OR 10 BASIS BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. 'R EASONS TO BELIEVE' DO NOT MEAN 'REASONS TO SUSPECT'. THE ASSE SSING OFFICER CANNOT INSTITUTE OR START A FISHING INVESTIGA TION OR ROWING INQUIRY. THERE MUST BE SOME INFORMATION OR MA TERIAL WHICH IS ON THE FILE WHICH MAKES THE ASSESSING OFFIC ER FORM A TENTATIVE OR PRIMA FACIE OPINION THAT INCOME HAS ESCA PED ASSESSMENT. THIS MATERIAL OR INFORMATION CANNOT BE WHO LLY VAGUE, INDEFINITE OR FARFETCHED. IT MUST HAVE NEXUS OR LIVE LINK WITH THE FORMATION OF BELIEF. THE TEST IS WHETHER A REASONABLE PERSON WOULD HAVE FORMED THE REQUISITE BELIEF ON THE BASIS OF INFORMATION OR MATERIAL AS STATED/RECORDED BY THE ASS ESSING OFFICER THAT INCOME HAS POSSIBLY ESCAPED ASSESSMENT . MERE IPSE DIXIT OR A HUNCH DOES NOT AMOUNT TO REASON TO B ELIEVE. INSPITE OF THE WIDE POWER, THE EXERCISE OF POWER MUST MEET THIS REQUIREMENT THAT THERE WAS RELEVANT MATERIAL AND GROUND FOR THE ASSESSING OFFICER TO FORM A TENTATIVE OR PR IMA FACIE OPINION THAT THE INCOME AS ESCAPED ASSESSMENT WHICH INCLUDES NON ASSESSMENT OR UNDER ASSESSMENT. BUT, IT I S NOT THE REQUIREMENT THAT THE ASSESSING OFFICER SHOULD HA VE FINALLY ASCERTAINED THE FACT OF ESCAPEMENT OF INCOME BY REC ORDING FINDINGS OR CONCLUSION. THIS FINAL ASCERTAINMENT TAKES PLACE WHEN THE FINAL ASSESSMENT ORDER IS PASSED. THE ASSESS ING OFFICER HAS TO SHOW TENTATIVELY OR PRIMA FACIE THAT INCOME HAS ESCAPED ASSESSMENT. THERE SHOULD BE SOME MATERIAL OR BA SIS FOR THE SAID FORMATION OF BELIEF (REFER ASSISTANT COM MISSIONER OF INCOME TAX V. RAJESH JHAVERI STOCK BROKERS, (2008) 14 SCC 208; ITO V. SELECTED DALURBAND COAL CO. (P) LTD. (1997) 10 SCC 68; RAYMOND WOOLLEN MILLS LTD. V. ITO , (2008) 14 SCC 218). 10. IN THE ABOVE CASE, THE HON'BLE DELHI HIGH COUR T HAS CATEGORICALLY STATED THAT UNDER SECTION 147 OF THE ACT, IT IS THE REQUIREMENT THAT THE ASSESSING OFFICER MU ST RECORD REASON TO BELIEVE. THIS REQUIREMENT MANDA TES THAT THE ASSESSING OFFICER MUST STATE IN WRITING WH Y AND FOR WHAT REASON, I.E. CAUSE OR JUSTIFICATION, HE IS INVOKING 11 THE POWER. THE HON'BLE HIGH COURT FURTHER HELD TH AT THE REASONS MUST SATISFY THE STIPULATION THAT THE ASSES SING OFFICER SHOULD HAVE FORMED A PRIMA-FACIE BELIEF THA T INCOME HAS ESCAPED ASSESSMENT. IN THE INSTANT CASE , THE ASSESSING OFFICER PROCEEDED ON THE PREMISE THAT THE ASSESSEE HAD MADE COMPLAINT TO THE SSP OF POLICE, LUDHIANA REGARDING ROKA AND ENGAGEMENT FUNCTIONS SOLEMNIZED ON 29.8.2004 AND EXPENDITURE OF RS.7 LAC S WAS INCURRED ON THESE FUNCTIONS. THIS OBSERVATION IS F ACTUALLY INCORRECT AND IT CANNOT BE SAID THAT THE ASSESSING OFFICER HAS FORMED A PRIMA-FACIE BELIEF THAT INCOME HAS ESC APED ASSESSMENT. AT THIS JUNCTURE, I MAY REFER TO THE D ECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ATLAS CYCLE INDUSTRIES (1989) 180 ITR 319 (P&H ), WHEREIN IT HAS BEEN HELD THAT THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION TO PROCEED WITH THE RE- ASSESSMENT, THE MOMENT HE FOUND THE TWO GROUNDS MENTIONED IN THE RE-ASSESSMENT NOTICE INCORRECT OR NON- EXISTENT. IN THE INSTANT CASE ALSO, NOTICE WAS ISS UED TO THE ASSESSEE ON GROUND THAT HE HAD MADE THE COMPLAI NT TO THE SSP OF POLICE, WHICH IS FACTUALLY INCORRECT. I N FACT, THE ASSESSEE DID NOT MAKE ANY COMPLAINT TO THE SSP, LUDHIANA. SECONDLY, THE ASSESSING OFFICER HAS MENT IONED IN THE REASONS RECORDED THAT INFORMATION WAS RECEIV ED FROM DDIT (INVESTIGATION)-III, LUDHIANA THAT THE AS SESSEE AND HIS DAUGHTER MS.SARIKA JAIN HAD SPENT APPROXIMA TELY 12 RS.37 LACS ON HER ENGAGEMENT AND MARRIAGE CEREMONY. IT IS BROUGHT TO OUR NOTICE THAT NO ADDITION HAS BEEN MADE IN THE HANDS OF MS.SARIKA JAIN. ON THE CONTRARY, SMT. SARIKA JAIN ALLEGED IN HER COMPLAINT MADE WITH THE POLICE THAT THE ASSESSEE HAD SPENT AN AMOUNT OF RS.7 LACS AT TH E TIME OF ROKA AND ENGAGEMENT FUNCTIONS. IT IS ALSO OBSER VED THAT IN THIS CASE THE INFORMATION WAS PROVIDED BY D DIT (INVESTIGATION)-III, LUDHIANA ON THE BASIS OF POLIC E REPORT, WHEREIN THE DAUGHTER OF THE ASSESSEE ALLEGED THAT A HUGE AMOUNT HAS BEEN SPENT ON MARRIAGE AND ROKA CEREMONY . THE COMPLAINT WAS MADE BY MS.SARIKA JAIN AGAINST HE R HUSBAND AND IN-LAWS. SHRI S.K. MAINGI, LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID COMPLAINT WAS MADE BY MS.SARIKA JAIN IN ORDER TO FETCH MONEY FROM HER HUSBAND AND IN-LAWS. THIS CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE HAS SOME FORCE, WHICH CAN NOT BE IGNORED. RECENTLY, DIVISION BENCH OF THIS TRIBU NAL IN THE CASE OF SHRI SUBHASH CHANDER GOEL VS. ITO, CHANDIGARH IN ITA NO.282/CHD/2014 RELATING TO ASSESSMENT YEAR 2006-07 HELD THAT STATEMENT RECORDE D BY THE POLICE OFFICER UNDER SECTION 161 OF CRPC, 1983 IS NEITHER GIVEN ON OATH, NOR IT IS TESTED BY CROSS EXAMINATION AND, THEREFORE, SUCH A STATEMENT CANNOT BE TREATED AS SUBSTANTIVE EVIDENCE TO REOPEN THE ASSES SMENT PROCEEDINGS. IN THE INSTANT CASE, THE ASSESSING OF FICER HAD NOT EXAMINED AND CORROBORATED THE INFORMATION RECEIVED FROM DDIT (INVESTIGATION)-III, LUDHIANA BE FORE RECORDING HIS SATISFACTION OF THE ESCAPED INCOME AN D 13 INITIATING THE RE-ASSESSMENT PROCEEDINGS. IN MY O PINION, THE ASSESSING OFFICER HAS THUS ACTED ON THE BASIS O F SUSPICION AND HE HAS ALSO NOT APPLIED HIS MIND BEFO RE RECORDING THE REASONS FOR REOPENING OF THE ASSESSME NT. THUS IN MY CONSIDERED OPINION, THE STATEMENT MADE B Y MS.SARIKA JAIN UNDER SECTION 161 OF CRPC CANNOT BE TREATED AS RELEVANT MATERIAL FOR REOPENING PROCEEDI NGS UNDER SECTION 147 OF THE ACT. 11. IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT REOPENING OF THE ASSESSMENT WAS NOT VALID UNDER THE LAW AND, HENCE I QUASH THE IMPUGNED ORDERS OF THE AUTHO RITIES BELOW. 12. SINCE I HAVE QUASHED THE RE-ASSESSMENT ORDER, THEREFORE, NO COMMENTS ARE REQUIRED TO BE GIVEN ON THE MERITS OF THE CASE. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH DAY OF MAY, 2016 SD/- (H.L.KARWA) VICE PRESIDENT DATED : 19 TH MAY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE D R. ASSISTANT REGISTRAR, ITAT, CHANDIGARH