Rabindra Nath Biswas, Hooghly V. ITO, Ward - 3(2), Purulia, Purulia

ITA 1731/KOL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48092 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 12-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P KOLHE
• Keywords: Reopening of assessment; Search and seizure; Question of law; Revised return; Reason to believe; Reassessment proceedings
• Section: 10(14); 142(1); 28

Judgement Text

, SMC(A) , IN THE INCOME TAX APPELLATE TRIBUNAL SMC(A) BENCH : KOLKATA () , ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM] / I.T.A NOS. 1731 TO 1734/KOL/2009 !' !' !' !'/ // / ASSESSMENT YEARS : 2003-04 TO 2006-07 RABINDRA NATH BISWAS VS INCOME-TAX OFFICER, WD-3( 2), PURULIA (PAN-AICPB 4896 K) ($% /APPELLANT ) (&'$%/ RESPONDENT ) FOR THE APPELLANT: SHRI SOMNATH GHOSH FOR THE RESPONDENT: SHRI P. KOLHE () / ORDER THESE APPEALS BY ASSESSEE ARE ARISING OUT OF THE OR DER OF CIT(A), ASANSOL IN APPEAL NO. 52, 53, 54, 55/CIT(A)/ASL/WARD-3(2)/PUR/2008-09 DATED 26.09.2008. THE ASSESSMENTS WERE FRAMED BY ITO, WD-3(2), PURULIA U/S. 147/143(3 ) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSME NT YEARS 2003-04 TO 2006-07 VIDE HIS ORDER DATED 29.08.2008. 2. THE FIRST ISSUE IN THESE APPEALS OF THE ASSESSEE IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING REOPENING OF ASSESSMENTS U/S. 147 R.W.S. 148 OF THE ACT. FOR THIS, THE ASSESSEE HAS RAISED THE COMMON GROUND IN ALL THE YEARS AND FOR T HE SAKE OF CLARITY AND BREVITY, WE ARE REPRODUCING GROUND NO. 1 OF ITA NO.1731/KOL/2009 FO R ASSESSMENT YEAR 2003-04, WHICH READS AS UNDER: FOR THAT THE LD. CIT(A), ASANSOL FAILED TO APPRECI ATE THAT NONE OF THE CONDITIONS PRECEDENT EXISTED NOR WERE SATISFIED IN THE INSTANT CASE FOR THE LD. INCOME TAX OFFICER, WARD-3(2), PURULIA TO ASSUME JURISDICTION U/S. 147 OF THE INCOME TAX ACT, 1961 AND THE PURPORTED FINDINGS ON THAT BEHALF ARE ALTOGETHER ARBITRARY, UNREASONABLE AND PERVERSE. 3. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT THE ASSESSING OFFICER RECEIVED INFORMATION THROUGH CIT, ASANSOL IN THE CASE OF THE ASSESSEE AND ACCORDINGLY, HE RECORDED REASONS FOR REOPENING OF THE ABOVE FOUR ASSESSMENT YEARS. FOLLOWING ARE THE COMMON REASONS IN ALL THE YEARS: RABINDRA NATH BISWAS, OFFICE OF THE MINING OFFICER -IN-CHARGE OF PURULIA ZONE, MISSION ROAD BHATTANDH, PURULIA-723103, A.YS. 2003-04, 2004 -05, 2005-06, 2006-07. 28.01.2008. AN ENQUIRY WAS CONDUCTED THROUGH DEPAR TMENTAL INSPECTOR ON THE BASIS OF INFORMATION RECEIVED FROM THE COMMISSIONER OF INCOM E TAX, ASANSOL, WHICH ARE PLACED 2 ITA 1731-1734/K/20 0 9 RABINDRA NATH BISWAS A.Y.03-04- 06-07 IN THE CONFIDENTIAL FOLDER OF RABINDRA NATH BISWAS, INSPECTING OFFICER AND MINING OFFICER-IN-CHARGE OF PURULIA ZONE. ON THE BASIS OF INSPECTORS REPORT WHICH IS PLACED IN RECORD I HAVE THE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T SINCE THE ASSESSEE HAS CLAIMED EXCESSIVE DEDUCTION, ALLOWANCE OR RELIEF IN THE RET URNS OF INCOME FOR THE A.YRS. 2003-04, 2004-05, 2005-06 AND 2006-07 AS PER FOLLOWING DETAI LS. 1. DEDUCTION U/S. 80DD IS CLAIMED FOR DEPENDENT SI STER WITHOUT FURNISHING ANY MEDICAL BOARD CERTIFICATE. 2. DEDUCTION U/S. 10(13A) IS CLAIMED IN EXCESS OF ACTUAL AMOUNT OF HRA RECEIVED AND WITHOUT FURNISHING ANY SENT PAYMENT RECEIPT. 3. DEDUCTION IS CLAIMED FOR MEDICAL ALLOWANCE RECEI PT WHICH IS NOT A PRESCRIBED ALLOWANCE FOR THE PURPOSE OF SECTION 10(14) OF THE I. T. ACT, 1961 READ WITH RULE 2BB OF THE I. T. RULE 1962. ISSUE NOTICE U/S. 148 FOR THE A.YEARS 2003-04, 200 4-05, 2005-06 AND 2006-07 FOR THE PURPOSE TO REASONS THE INCOME OF THE ASSESSEE ON T HE BASIS REASONS RECORDED ABOVE. SD/- ITO, WARD-3(2) CIT(A) SIMPLY AFTER RECORDING REASONS CONFIRMED THI S ISSUE OF THE ASSESSEES APPEALS BY GIVING FOLLOWING FINDING: FROM THE ABOVE REFERRED REPRODUCTION OF REASONS RE CORDED BY THE A.O. FOR ISSUING THE NOTICE U/S. 148, IN MY CONSIDERED VIEW, THE A.O. HA D REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ASSESS MENT YEARS 2003-04, 2004-05, 2005- 06 AND 2006-07. HENCE, THIS PLEA OF THE APPELLANT IS REJECTED THAT THE A.O. WAS NOT JUSTIFIED IN ISSUING NOTICE U/S. 148. GROUND NO.1 IS REJECTED. AGGRIEVED AGAINST THE ACTION OF THE CIT(A), THE ASS ESSEE IS IN APPEALS BEFORE US. 4. BEFORE ME, THE LD. COUNSEL FOR THE ASSESSEE SHRI SOMNATH GHOSH, FIRST OF ALL, TOOK ME TO THE FIRST PARA OF ASSESSMENT ORDER THAT THE ASSE SSING OFFICER HAS BASED HIS REASONS OR FORMED REASON TO BELIEVE ON THE BASIS OF INSPECTORS REPOR T. HE DREW OUR ATTENTION TO THE FIRST PARA OF THE ASSESSMENT ORDER, WHICH READS AS UNDER: THE ASSESSEE SRI RABINDRA NATH BISWAS, AN INSPECTI NG OFFICER & MINING OFFICER-IN- CHARGE OF PURULIA ZONE WAS EMPLOYED UNDER GOVT. OF W.B. HE WAS ALSO DDO AND HEAD OF THE OFFICE. AN ENQUIRY WAS CONDUCTED BY THE DEP ARTMENTAL INSPECTOR, AGAINST HIM, AS PER DIRECTION OF THE LD. COMMISSIONER OF INCOME TAX , ASANSOL. ON THE BASIS OF INSPECTORS REPORT, IT WAS BELIEVED THAT HIS INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF I. T. ACT, 1961. ACCORDINGLY, NOTICE U/S. 148 OF I. T. ACT, 1961 WAS ISSUED AND DULY SERVED T O THE ASSESSEE. IN RESPONSE TO THE NOTICE U/S. 148 OF I. T. ACT, 1961, THE ASSESSEE SU BMITTED HIS REVISED RETURN OF INCOME ON 26.02.2008 SHOWING TOTAL INCOME OF RS.1,51,181/-. SUBSEQUENTLY, NOTICES U/S. 143(2) AND 142(1) OF I. T. ACT, 1961 ALONG WITH REQUISITIONS W ERE DULY SERVED. 3 ITA 1731-1734/K/20 0 9 RABINDRA NATH BISWAS A.Y.03-04- 06-07 HE FURTHER STATED THAT ASSESSMENTS IN THESE YEARS A RE FORMED ON THE BASIS OF INSPECTORS REPORT AND REASONS WERE RECORDED ONLY ON THE BASIS OF INSP ECTORS REPORT. LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE ENQUIRY REPORT IN THE CASE OF THE A SSESSEE BY THE INSPECTOR OF INCOME-TAX, PURULIA DATED 24.1.2008 AND STATED THAT THE ENTIRE ENQUIRY REPORT IS ON THE BASIS OF CONJECTURE AND SURMISES AND ON THE BASIS OF THE SAME, THE ASSE SSING OFFICER HAS RECORDED REASONS AS NOTED ABOVE. HE FURTHER STATED THAT THE ASSESSING OFFICE R WHILE FORMING REASONS TO BELIEVE HAS JUST BASED THIS INFORMATION OF INSPECTORS REPORT WHICH IS PLACED ON RECORD AND HE HAS NOT FORMED HIS INDEPENDENT REASONS TO BELIEVE. FOR THIS, HE R EFERRED TO THE CASE LAW OF (1) PRASHANT S. JOSHI (2) DATTARAM SHRIDHAR BHOSALE VS. ITO (2010) 324 ITR 154 (BOM), WHEREIN HONBLE BOMBAY HIGH COURT ALLOWING THE PETITIONS NOTED THAT REVENUE HAD SOUGH T TO URGE THAT THE AMOUNT RECEIVED BY THE PETITIONER WAS CHARGEABLE TO TAX UNDER CLAUSES (IV)/(V) OF SECTION 28. THE QUESTION AS TO WHETHER THERE WAS REASON TO BELI EVE, WITHIN THE MEANING OF SECTION 147 THAT INCOME HAS ESCAPED ASSESSMENT, MUST BE DETERMINED W ITH REFERENCE TO THE REASONS RECORDED BY THE ASSESSING OFFICER, FURTHER HONBLE COURT NOTED. THE REASONS WHICH ARE RECORDED COULD NOT BE SUPPLEMENTED BY AFFIDAVITS. IN ANY CASE EX FACI E SECTION 28(IV) DOES NOT APPLY TO THE BENEFITS WHICH ARE PAID IN CASH OR MONEY. HONBLE B OMBAY HIGH COURT FURTHER LAID DOWN THAT PAYMENT MADE TO A PARTNER IN REALIZATION OF HIS SHA RE IN THE NET VALUE OF THE ASSETS UPON HIS RETIREMENT FROM A FIRM, DOES NOT FALL UNDER CLAUSE (V) OF SECTION 28 AND ACCORDINGLY THERE WAS ABSOLUTELY NO BASIS FOR THE ASSESSING OFFICER TO FO RM A BELIEF THAT ANY INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT WITHIN THE MEANING OF THE SU BSTANTIVE PROVISIONS OF SECTION 147. THE NOTICES WERE NOT VALID AND WERE QUASHED. 5. LD. COUNSEL FOR THE ASSESSEE FURTHER RELIED ON T HE DECISION OF HONBLE M. P. HIGH COURT IN THE CASE OF CIT VS. D. N. PACHORI (2010) 189 TAX MAN 420 (MP), WHEREIN IT HAS BEEN HELD AS UNDER: 7. AS OBSERVED SUPRA, WE DO NOT FIND ANY SUBSTANTI AL QUESTION OF LAW ARISING IN THIS APPEAL. IN OUR VIEW BOTH THE AUTHORITIES, NAMELY C IT AND ITAT RIGHTLY HELD THAT FOR WANT OF ANY MATERIAL, THERE WAS NO JUSTIFICATION FO R ISSUANCE OF NOTICE UNDER SECTION 148 IBID. IN OUR VIEW IT WAS RIGHTLY HELD THAT THE REPORT OF INSPECTOR WAS NOT SUFFICIENT TO WARRANT ISSUANCE OF NOTICE ON THE FACTS OF THIS CASE AND SOMETHING MORE WAS REQUIRED. THAT APART, EVEN THE ALLEGED REPORT DID NOT CONTAIN ANY MATERIAL EVIDENCE TO ENABLE THE ASSESSING OFFICER TO ISSUE IMPUGNED NOTI CE UNDER SECTION 148 IBID FOR RE- OPENING OF ASSESSMENT. THIS, IN OUR OPINION, IS A PURE QUESTION OF FACT. HE FURTHER RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SFIL STOCK BROKING LTD. (2010) 325 ITR 285 (DEL.), WHERE IN IT HAS BEEN HELD AS UNDER: AFTER HAVING HEARD THE COUNSEL FOR THE PARTIES, WE ARE INCLINED TO AGREE WITH THE SUBMISSIONS MADE BY THE RESPONDENT/ASSESSEE. WE FIN D THAT THE SUPREME COURT IN RAJESH JHAVERI [2007] 291 ITR 500 M ADE IT ABSOLUTELY CLEAR THAT BEFORE AN ASSESSING OF FICER 4 ITA 1731-1734/K/20 0 9 RABINDRA NATH BISWAS A.Y.03-04- 06-07 ISSUES A NOTICE UNDER SECTION 148, THEREBY REOPENIN G THE ASSESSMENT UNDER SECTION 147 OF THE SAID ACT, HE MUST HAVE FORMED A BELIEF THAT INC OME HAD ESCAPED ASSESSMENT AND THAT THERE MUST BE SOME BASIS FOR FORMING SUCH A BELIEF. THE SUPREME COURT MADE IT CLEAR THAT THE BASIS OF SUCH BELIEF COULD BE DISCERNED FROM TH E MATERIAL ON RECORD WHICH WAS AVAILABLE WITH THE ASSESSING OFFICER. HOWEVER, THE SUPREME COURT IN RAJESH JHAVERI [2007] 291 ITR 500 D ID NOT SAY THAT IT WAS NOT NECESSARY FOR THE ASSES SING OFFICER TO FORM A 'BELIEF' AND THAT THE MERE FACT THAT THERE WAS SOME MATERIAL ON RECORD WAS SUFFICIENT. IN THE PRESENT CASE, WE FIND THAT THE FIRST SENTENC E OF THE SO-CALLED REASONS RECORDED BY THE ASSESSING OFFICER IS MERE INFORMATION RECEIVED FROM THE DEPUTY DIRECTOR OF INCOME- TAX (INVESTIGATION). THE SECOND SENTENCE IS A DIREC TION GIVEN BY THE VERY SAME DEPUTY DIRECTOR OF INCOME-TAX (INVESTIGATION) TO ISSUE A N OTICE UNDER SECTION 148 AND THE THIRD SENTENCE AGAIN COMPRISES OF A DIRECTION GIVEN BY TH E ADDITIONAL COMMISSIONER OF INCOME TAX TO INITIATE PROCEEDINGS UNDER SECTION 148 IN RE SPECT OF CASES PERTAINING TO THE RELEVANT WARD. THESE THREE SENTENCES ARE FOLLOWED BY THE FOL LOWING SENTENCE, WHICH IS THE CONCLUDING PORTION OF THE SO-CALLED REASONS: 'THUS, I HAVE SUFFICIENT INFORMATION IN MY POSSESS ION TO ISSUE NOTICE UNDER SECTION 148 IN THE CASE OF M/S. SFIL STOCK BROKING LTD ON THE BASI S OF REASONS RECORDED AS ABOVE.' FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSING OFFI CER REFERRED TO THE INFORMATION AND THE TWO DIRECTIONS AS 'REASONS' ON THE BASIS OF WHICH H E WAS PROCEEDING TO ISSUE NOTICE UNDER SECTION 148. WE ARE AFRAID THAT THESE CANNOT BE THE REASONS FOR PROCEEDING UNDER SECTION 147/148 OF THE SAID ACT. THE FIRST PART IS ONLY AN INFORMATION AND THE SECOND AND THE THIRD PARTS OF THE BEGINNING PARAGRAPH OF THE S O-CALLED REASONS ARE MERE DIRECTIONS. FROM THE SO-CALLED REASONS, IT IS NOT AT ALL DISCER NIBLE AS TO WHETHER THE ASSESSING OFFICER HAD APPLIED HIS MIND TO THE INFORMATION AND INDEPEN DENTLY ARRIVED AT A BELIEF THAT, ON THE BASIS OF THE MATERIAL WHICH HE HAD BEFORE HIM, INCO ME HAD ESCAPED ASSESSMENT. CONSEQUENTLY, WE FIND THAT THE TRIBUNAL HAS ARRIVED AT THE CORRECT CONCLUSION ON THE FACTS. THE LAW IS WELL SETTLED. THERE IS NO SUBSTA NTIAL QUESTION OF LAW WHICH ARISES FOR OUR CONSIDERATION. HE FURTHER RELIED ON THE DECISION OF DELHI HIGH COU RT IN THE CASE OF BATRA BHATTA CO. (2008) 174 TAXMAN 444 (DEL.) AND THE HONBLE COURT HAS HEL D AS UNDER: 9 IN THE PRESENT CASE, WE FIND THAT THE FIRST SENT ENCE OF THE SO-CALLED REASONS RECORDED BY THE ASSESSING OFFICER IS MERE INFORMATION RECEIVED FROM THE DEPUTY DIRECTOR OF INCOME- TAX (INVESTIGATION). THE SECOND SENTENCE IS A DIREC TION GIVEN BY THE VERY SAME DEPUTY DIRECTOR OF INCOME-TAX (INVESTIGATION) TO ISSUE A N OTICE UNDER SECTION 148 AND THE THIRD SENTENCE AGAIN COMPRISES OF A DIRECTION GIVEN BY TH E ADDITIONAL COMMISSIONER OF INCOME-TAX TO INITIATE PROCEEDINGS UNDER SECTION 14 8 IN RESPECT OF CASES PERTAINING TO THE RELEVANT WARD. THESE THREE SENTENCES ARE FOLLOWED B Y THE FOLLOWING SENTENCE, WHICH IS THE CONCLUDING PORTION OF THE SO-CALLED REASONS: THUS, I HAVE SUFFICIENT INFORMATION IN MY POSSESSI ON TO ISSUE NOTICE UNDER SECTION 148 IN THE CASE OF M/S. SFIL STOCK BROKING LTD. ON THE BASIS OF REASONS RECORDED AS ABOVE. 10. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSING OFFICER REFERRED TO THE INFORMATION AND THE TWO DIRECTIONS AS REASONS ON THE BASIS OF WHI CH HE WAS PROCEEDING TO ISSUE NOTICE UNDER SECTION 148. WE ARE AFRAID THAT THESE CANNOT BE THE REASONS FOR PROCEEDING UNDER SECTION 147/148 OF THE SAID ACT. THE FIRST PART IS ONLY AN INFORMATION AND THE SECOND AND THE THIRD PARTS OF THE BEGINNING PARAGRAPH OF THE S O-CALLED REASONS ARE MERE DIRECTIONS. FROM THE SO-CALLED REASONS, IT IS NOT AT ALL DISCER NIBLE AS TO WHETHER THE ASSESSING OFFICER HAD APPLIED HIS MIND TO THE INFORMATION AND INDEPEN DENTLY ARRIVED AT A BELIEF THAT, ON THE 5 ITA 1731-1734/K/20 0 9 RABINDRA NATH BISWAS A.Y.03-04- 06-07 BASIS OF THE MATERIAL WHICH HE HAD BEFORE HIM, INCO ME HAD ESCAPED ASSESSMENT. CONSEQUENTLY, WE FIND THAT THE TRIBUNAL HAS ARRIVED AT THE CORRECT CONCLUSION ON FACTS. THE LAW IS WELL-SETTLED. THERE IS NO SUBSTANTIAL QUESTI ON OF LAW WHICH ARISES FOR OUR CONSIDERATION. [EMPHASIS SUPPLIED] 6. HE ALSO RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SARTHAK SECURITIES CO. (P) LTD. VS. ITO (2010) 195 TAXMAN 2 62 (DEL.), WHEREIN IT HAS BEEN HELD AS UNDER: 23. THE OBTAINING FACTUAL MATRIX HAS TO BE TESTED ON THE ANVIL OF THE AFORESAID PRONOUNCEMENT OF LAW. IN THE CASE AT HAND, AS IS EV INCIBLE, THE ASSESSING OFFICER WAS AWARE OF THE EXISTENCE OF FOUR COMPANIES WITH WHOM THE ASSESSEE HAD ENTERED INTO TRANSACTION. BOTH THE ORDERS CLEARLY EXPOSIT THAT T HE ASSESSING OFFICER WAS MADE AWARE OF THE SITUATION BY THE INVESTIGATION WING AND THERE I S NO MENTION THAT THESE COMPANIES ARE FICTITIOUS COMPANIES. NEITHER THE REASONS IN THE IN ITIAL NOTICE NOR THE COMMUNICATION PROVIDING REASONS REMOTELY INDICATE INDEPENDENT APP LICATION OF MIND. TRUE IT IS, AT THAT STAGE, IT IS NOT NECESSARY TO HAVE THE ESTABLISHED FACT OF ESCAPEMENT OF INCOME, BUT WHAT IS NECESSARY IS THAT THERE IS RELEVANT MATERIAL ON WHI CH A REASONABLE PERSON COULD HAVE FORMED THE REQUISITE BELIEF. TO ELABORATE, THE CONC LUSIVE PROOF IS NOT GERMANE AT THIS STAGE BUT THE FORMATION OF BELIEF MUST BE ON THE BA SE OR FOUNDATION OR PLATFORM OF PRUDENCE WHICH A REASONABLE PERSON IS REQUIRED TO A PPLY. AS IS MANIFEST FROM THE PERUSAL OF THE SUPPLY OF REASONS AND THE ORDER OF REJECTION OF OBJECTIONS, THE NAMES OF THE COMPANIES WERE AVAILABLE WITH THE AUTHORITY. THEIR EXISTENCE IS RIOT DISPUTED. WHAT IS MENTIONED IS THAT THESE COMPANIES WERE USED AS COND UITS. IN THAT VIEW OF THE MATTER, THE PRINCIPLE LAID DOWN IN LOVELY EXPORTS (P.) LTD.S C ASE (SUPRA) GETS SQUARELY ATTRACTED. THE SAME HAS NOT BEEN REFERRED TO WHILE PASSING THE ORDER OF REJECTION. THE ASSESSEE IN HIS OBJECTIONS HAD CLEARLY STATED THAT THE COMPANIE S HAD BANK ACCOUNTS AND PAYMENTS WERE MADE TO THE ASSESSEE COMPANY THROUGH BANKING C HANNEL. THE IDENTITY OF THE COMPANIES WAS NOT DISPUTED. UNDER THESE CIRCUMSTANC ES, IT WOULD NOT BE APPROPRIATE TO REQUIRE THE ASSESSEE TO GO THROUGH THE ENTIRE GAMUT OF PROCEEDINGS. IT IS TOTALLY UNWARRANTED. 7. ON THE OTHER HAND, THE LD. DR HEAVILY RELIED ON THE REASONS RECORDED AND ALSO INFORMATION RECEIVED FROM GOVT. OF WEST BENGAL, DIR ECTORATE OF MINES & MINERALS DATED 25 TH APRIL, 2007, WHEREIN IT IS REPORTED AS UNDER: IT HAS BEEN BROUGHT TO MY KNOWLEDGE THAT THE ABOVE MENTIONED OFFICER, SHRI R. N. BISWAS, WHO IS ALSO THE DDO & HEAD OFF OFFICE IS CL AIMING DEDUCTION FROM INCOME ON ACCOUNT OF SPECIFIED EXPENDITURE ON DISABLE DEPEND ENT AS ALSO ON ACCOUNT OF EXPENSES FOR MEDICAL TREATMENT IN THE ANNUAL INCO ME TAX RETURNS BEING FILED BY HIM SINCE LONG. AS PER INFORMATION AVAILABLE AT THIS O FFICE SHRI BISWASS MOTHER WAS HANDICAPPED/DISABLED BUT SHE EXPIRED IN 2002 & THER EFORE, IF SHRI BISWAS ACTUALLY CONTINUES CLAIMING AFOREMENTIONED RELIEF FROM INCOM E TAX AFTER 2002 THAT IS NOT ONLY UNBECOMING OF A GOVT. OFFICER APART FROM VIOLATION OF PROVISIONS OF INCOME TAX ACT & RULES MISUSING HIS OFFICIAL POSITION AS DDO. I, THEREFORE REQUEST YOU TO CAUSE AN ENQUIRY IN THE MATTER INCLUDING VERIFICATION OF THE ANNUAL RETURNS FILED BY SHRI BISWAS ESPECIALLY AFTE R 2002. IT WILL BE HIGHLY APPRECIATED IF THE RESULT OF THE ENQUIRY IS MADE KNOWN TO ME AT THE EARLIEST. 6 ITA 1731-1734/K/20 0 9 RABINDRA NATH BISWAS A.Y.03-04- 06-07 8. WE FIND FROM THE ABOVE CASE LAWS AS WELL AS THE FACTS OF THE CASE THAT THE ASSESSING OFFICER HAS RECORDED REASONS ON THE BASIS OF MERELY INSPECTORS REPORT. FROM THE REASONS IT CANNOT BE INFERRED THAT ASSESSING OFFICER HAS FORME D ANY OPINION OR HE HAS ANY INFORMATION ON THE BASIS OF WHICH HE HAS REASONS TO BELIEVE THAT T HE INCOME HAS ESCAPED ASSESSMENT. THE A.O IN THE PRESENT CASE HAS NO REASONS TO BELIEVE THAT A PARTICULAR RECEIPT IS INCOME UNDER THE ACT AND UNLESS AND UNTIL SUCH REASONS DO NOT EXISTS, RE OPENING IS NOT POSSIBLE. IT IS THE DUTY OF THE AO WHEN IT CHOOSES TO ISSUE REASSESSMENT NOTICE WIT H REGARD TO A PARTICULAR RECEIPT, TO MAKE THE NECESSARY ALLEGATIONS IN THAT REGARD SO AS TO E STABLISH THAT SUCH RECEIPT IS INCOME TAXABLE UNDER THE ACT. HERE, THE AO HAS BASED HIS REASONS TO BELIEVE ONLY ON THE INSPECTORS REPORT AND NO INDEPENDENT RECORDING OF REASONS, WHICH REMO TELY INDICATE INDEPENDENT APPLICATION OF MIND. HENCE, I AM OF THE VIEW THAT THE REOPENING I S BAD IN LAW AND QUASHED ACCORDINGLY. 9. AS I HAVE ALREADY DECIDED THE LEGAL ISSUE IN FAV OUR OF THE ASSESSEE QUASHING THE REASSESSMENT PROCEEDINGS, THE ISSUES ON MERITS NEED NO ADJUDICATION. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. 11. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.4.2 011 SD/- , (MAHAVIR SINGH) JUDICIAL ME MBER ( *+ *+ *+ *+) )) ) DATED 28TH APRIL, 2011 ,- ./ 0 JD.(SR.P.S.) () 1 &2 3(2!4- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT SHRI RABINDRA NATH BISWAS, C/O, SHRI S OMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHI BTALA, P.S. CHINSURAH, DIST. HOOGHLY, PIN 712 105. 2 &'$% / RESPONDENT ITO, WARD-3(2), PURULIA 3 . ) ( )/ THE CIT(A), ASANSOL 4. 5. ) / CIT ASANSOL 2:; & / DR, KOLKATA BENCHES, KOLKATA '2 &/ TRUE COPY, ()