S. Jagit Singh L/h. of Late Sh. Joginder Singh, Delhi V. ITO, New Delhi

ITA 3187/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3493 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 19-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Bogus purchase; Reason to believe; Reassessment proceedings
• Section: 148

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO. 3187/DEL/2017 : ASSTT. YEAR : 2008 - 09 S. JAGJIT SINGH L/H OF LATE SH. JOGINDER SINGH PROP. OF M /S SUPER INDUSTRIES, A - 515/1, SHASHTRI NAGAR, DELHI - 110052 VS INCOME TAX OFFICER, WARD - 50(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A ASPS8033M ASSESSEE BY : SH. RAMESH GOEL, CA REVENUE BY : SH. AMRIT LAL , SR. DR DATE OF HEARING : 07.11 .201 7 DATE OF PRONOUNCE MENT : 07 .11 .201 7 ORDER THIS A PPEAL HAS BEEN FILED BY THE LEGAL H EIR OF THE DECEASED ASSESSEE AGAINST THE ORDER DATED 24.04.2017 OF LD. CIT(A ) - 17 , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS & CIRCUMSTANCE OF THE CASE, THE ORDER PASSED BY THE A.O. IS BAD BOTH IN LAW AND ON FACTS OF THE CASE. 2. THE LD. A.O, TOTALLY UNJUSTIFIED IN REOPENING THE CASE OF THE BASIS OF INFORMATION FROM THE INVESTIGATION DEPARTMENT & HAS NOT APPLIED HIS OWN MIND. ITA NO . 3187 /DE L/2017 S. JAGJIT SINGH 2 3. THAT ON THE FACTS & CIRCUMSTANCE OF THE CASE, THE A. O. HAS ERRED IN MAKING ADDITION OF RS. 2,06,654/ - ON A/C OF BOGUS PURCHASES. 4. THE LD. CIT(A) - 17 IS TOTALL Y UNJUSTIFIED IN UPHOLDING THE ADDITION OF 20% OF RS. 8,26,618/ - WHERE THERE IS NO BOGUS PURCHASE AS THE ASSESSEE'S SALE HAVE BEEN DULY ACCEPTED. THE ADDITIONS ARE UP - HOLD WITHOUT ANY BASIS. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. ' 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SATED THAT THIS ISSUE IS SQUARELY COVERED IN ASSESSEE S OWN CASE VIDE ORDER DATED 15.05.2015 IN ITA NO. 4722/DEL/2016 FOR THE ASSESSMENT YEAR 200 7 - 08 (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). 4 . IN HIS RIVAL SUBMISSIONS, THE LD. DR ALTHOUGH SUPPORTED THE ORDER OF THE AO BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5 . I HAVE CONSIDE RED THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT ON AN IDENTICAL ISSUE HAVING SIMILAR FACTS WAS A SUBJECT MATTER OF THE ASSESSEE S APPEAL FOR THE ASSESSMENT YEAR 2008 - 09 IN ITA NO. 4722/DEL/2016 WHEREIN THE ISSUE HAS B EEN DECIDED IN FAVOUR ITA NO . 3187 /DE L/2017 S. JAGJIT SINGH 3 OF THE ASSESSEE AND AGAINST THE DEPARTMENT. THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 6 TO 9 OF THE ORDER DATED 15.05.2017 WHICH READ AS UNDER: 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE AO REOPENED THE ASSESSMENT ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING I.E. FROM THE ACIT, CENTRAL CIRCLE - 10, JHANDEWALEN EXTENSION, NEW DELHI VID E LETTER DATED 13.03.2013 WHICH WAS FORWARDED THROUGH CIT, CENTRAL - II, NEW DELHI AND CCIT, DELHI - I, NEW DELHI VIDE THEIR LETTERS DATED 19.03.2013 AND 26.03.2013 RESPECTIVELY. IN THE PRESENT CASE, THE AO HAD THE REASON FOR BELIEF THAT THE INCOME HAD ESCAPED ASSESSMENT ONLY ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING AND DID NOT APPLY HIS OWN MIND. 7. ON A SIMILAR ISSUE THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX - 4 VS G & G PHARMA LTD. 384 IT R 147 (SUPRA) HELD AS UNDER: THE BASIC REQUIREMENT OF LAW FOR REOPENING AN ASSESSMENT IS APPLICATION OF MIND BY THE ASSESSING OFFICER, TO THE MATERIALS PRODUCED PRIOR TO REOPENING THE ASSESSMENT, TO CONCLUDE THAT HE HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. UNLESS THAT BASIC JURISDICTIONAL REQUIREMENT IS SATISFIED A POST MORTEM EXERCISE OF ANALYSING MATERIALS PRODUCED SUBSEQUENT TO THE REOPENING WILL NOT MAKE AN INHERENTLY DEFECTIVE REASSESSMENT ORDER VALID. ITA NO . 3187 /DE L/2017 S. JAGJIT SINGH 4 IT HAS FURTHER BEEN HELD AS U NDER: WITHOUT FORMING A PRIMA FACIE OPINION, ON THE BASIS OF SUCH MATERIAL, IT WAS NOT POSSIBLE FOR HIM TO HAVE SIMPLY CONCLUDED THAT IT WAS EVIDENT THAT THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BANK BY WAY OF ACCOMMODATION EN TRIES. THE BASIC JURISDICTIONAL REQUIREMENT WAS APPLICATION OF MIND BY THE ASSESSING OFFICER TO THE MATERIAL PRODUCED BEFORE ISSUING THE NOTICE FOR REASSESSMENT. WITHOUT ANALYSING AND FORMING A PRIMA FACIE OPINION ON THE BASIS OF MATERIAL PRODUCED, IT WAS NOT POSSIBLE FOR THE ASSESSING OFFICER TO CONCLUDE THAT HE HAD REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT. 8. SIMILARLY, THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SIGNATURE HOTELS PVT. LTD. VS ITO AND ANR. (2011) 338 ITR 51 (SUPRA) HELD AS UNDER: SECTION 147 OF THE INCOME - TAX ACT, 1961, IS WIDE BUT NOT PLENARY. THE ASSESSING OFFICER MUST HAVE 'REASON TO BELIEVE' THAT AN INCOME CHARGEABLE TO TAX HAS ES CAPED ASSESSMENT. THIS IS MANDATORY AND THE 'REASONS TO BELIEVE' ARE REQUIRED TO B E RECORDED IN WRITING BY THE ASSESSING OFFICER. SUFFICIENCY OF REASONS IS NOT A MATTER, WHICH IS TO BE DECIDED BY THE WRIT COURT, BUT EXISTENCE ON BELIEF IS THE SUBJECT - MATTER OF THE SCRUTINY. A NOTICE UNDER SECTION 148 CAN BE QUASHED IF THE 'BELIEF' IS NO T BONAFIDE, OR ONE BASED ON VAGUE, IRRELEVANT AND NON - SPECIFIC INFORMATION. THE BASIS OF THE BELIEF SHOULD BE DISCERNIBLE FROM THE MATERIAL ON RECORD, WHICH WAS AVAILABLE WITH THE ASSESSING OFFICER, WHEN HE RECORDED THE REASON. ITA NO . 3187 /DE L/2017 S. JAGJIT SINGH 5 THERE SHOULD BE A LINK BETWE EN THE REASONS AND THE EVIDENCE /MATERIAL AVAILABLE WITH THE ASSESSING OFFICER. THE 'REASONS TO BELIEVE WOULD MEAN CAUSE OR JUSTIFICATION OF THE ASSESSING OFFICER TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT AND NOT THAT THE ASSESSING OFFICER SHOULD HAVE FINALLY ASCERTAINED THE FACT BY LEGAL EVIDENCE OR REACHED A CONCLUSION, AS IS DETERMINED AND DECIDED IN THE ASSESSMENT ORDER, WHICH IS THE FINAL STAGE BEFORE THE ASSESSING OFFICER. IT HAS FURTHER BEEN HELD THAT: THE REASSESSMENT PROCEEDINGS WERE IN ITIATED ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTOR OF INCOME - TAX (INVESTIGATION ) THAT THE PETITIONER HAD INTRODUCED MONEY AMOUNTING TO RS. 5 LAKHS DURING FINANCIAL YEAR 2002 - 03 AS STATED IN THE ANNEXURE. ACCORDING TO THE INFORMATION, THE AMOUNT RECEIVED FROM A COMPANY, S, WAS NOTHING BUT AN ACCOMMODATION ENTRY AND THE ASSESSEE WAS THE BENEFICIARY. THE REASONS DID NOT SATISFY THE REQUIREMENTS OF SECTION 147 OF THE ACT. THERE WAS NO REFERENCE TO ANY DOCUMENT OR STATEMENT, EXCEPT THE ANNEXURE. THE ANNEXURE COULD NOT BE REGARDED AS A MATERIAL OR EVIDENCE THAT PRIMA FACIE SHOWED OR ESTABLISHED NEXUS OR LINK WHICH DISCLOSED ESCAPEMENT OF INCOME. THE ANNEXURE WAS NOT A POINTER AND DID NOT INDICATE ESCAPEMENT OF INCOME. FURTHER, THE ASSESSING OFFICER DID NOT APPLY HIS OWN MIND TO THE INFORMATION AND EXAMINE THE BASIS AND MATERIAL OF THE INFORMATION. THERE WAS NO DISPUTE THAT THE COMPANY, S, HAD A PAID - UP CAPITAL OF RS. 90 LAKHS AND WAS INCORPORATED ON JANUARY 4, 1989, AND WAS ALSO ALLOTTED A PERMANENT ACC OUNT NUMBER IN SEPTEMBER, 2001. THUS, IT COULD NOT BE HELD TO BE A FICTITIOUS PERSON. THE REASSESSMENT PROCEEDINGS WERE NOT VALID AND WERE LIABLE TO BE QUASHED. ITA NO . 3187 /DE L/2017 S. JAGJIT SINGH 6 9. IN THE PRESENT CASE ALSO THE AO SIMPLY ACTED UPON THE INFORMATION RECEIVED FROM THE INVESTI GATION WING AND DID NOT APPLY HIS OWN MIND. THEREFORE, THE REOPENING U/S 147 BY ISSUING THE NOTICE U/S 148 OF THE ACT ONLY ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING WAS NOT VALID. ACCORDINGLY, THE REASSESSMENT FRAMED BY THE AO IS QUA SHED. 6. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 15.05.2017 IN ITA NO. 4722/DEL/2016 FOR THE ASSESSMENT YEARS 2007 - 08, THE IMPUGNED ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED AND THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 07 /11 / 2017 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 07 /11/ 2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR