The ITO, Ward-8(4), Surat V. Shri Vasantlal Parshottamdas Shah, Surat

ITA 3969/AHD/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57193 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 08-12-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Income from undisclosed sources; Reason to believe
• Section: 133A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH BEFORE SHRI G.C.GUPTA, VICE-PRESIDENT (AZ) AND SHRI B.P. JAIN, ACCOUNTANT MEMBER SL NO. ITA NO. A.Y. APPELLANT VS RESPONDENT 1. 221/AHD/2008 2001-02 SMT. FALGUNIBEN C PATEL A-11, TRIKAM NAGAR SOCIETY NO.1 LH RD. SURAT PAN NO.ADGPP4059H VS. ITO WD- 9(1)SURAT 2. 3842/AHD/2007 2000-01 DEVSHIBHAI B PATEL HUF, 14, MAHESHWAR SOCIETY, OPP. BARODA PRESTIGE, VARACHHA RD. SURAT PANAACHD7443L VS. ITO WD-9(1) SURAT 3. 222/AHD/2008 2004-05 SMT. FALGUNIBEN C PATEL A-11, TRIKAM NAGAR SOCIETY NO.1 LH RD. SURAT PAN NO.ADGPP4059H VS. ITO WD- 9(1)SURAT 4. 234/AHD/2008 1999-00 SMT. SHARDABEN G SANDHANI, 301, NARASYANKKRUPA FLATS, GAJARAJ SHERI, GOPIPURA, SURAT PAN NO.ASJS0580J VS ITO, WARD- 5(4) SURAT 5. 1117/AHD/2008 1999-00 SHRIO VISHAL G PATEL, 303, SARVESHWAR COMPLEX, L.H. RD. SURAT PAN VS. ITO, WARD- 6(4) SURAT PAGE 2 NO.AKSPP7282K 6. 1484/AHD/2009 2001-02 SHRI KALPESHBHAI M LAVRI (HUF), PAN NO.AAEHK2655K VS ITO, WARD- 9(2) SURAT 7. 2236/AHD/2008 2001-02 YOGESH N PATEL (HUF), A-12, TRIKAM NAGAR SOCIETY, L.H. RD. SURAT PAN NO.AAAHY1476J VS. ITO, WARD- 9(4) SURAT 8. 2235/AHD/2008 1999-00 YOGESH N PATEL (HUF), A-12, TRIKAM NAGAR SOCIETY, L.H. RD. SURAT PAN NO.AAAHY1476J VS. ITO, WARD- 9(4) SURAT 9. 3629/AHD/2008 2000-01 SMT.ALPHABEN S PATEL, B-25, TRIKAM NAGAR SOCIETY, L.H. RD. SURAT PAN NO.AGTPP0321J VS. ITO WARD- 9(1), SURAT 10. 282/AHD/2009 2002-03 CHETABHAI P PATEL (HUF), A- 11, TRIKAM NAGAR SOCIETY-1, L.H. RD. SURAT PAN NO.AAAHC8118B VS IXTO WARD- 9(1), SURAT 11. 2232/AHD/2008 2004-05 -DO- VS -DO- 12. 345/AHD/2010 2003-04 SHRI ALPESHKUMAR C SHAH, PROP,. A.C. SHAH & CO. PLOT NO.74A, PATEL COLONY, NR. F.C. GANDHI MILLS, A.K. RD. SURAT PAN NO.ABNPS6858C VS ITO, WARD- 8(1) PAGE 3 SL NO. ASSESSEE BY REVENUE BY 1,3,4-5 SHRI MANISH J SHAH, AR SHRI G.S.SURYABANSHI, SR-DR 2 SHRI R.N.VEPARI, AR SHRI G.S.SURYABANSHI, SR-DR 6 SHRI SAPNESH SHAH, AR SHRI SANJEEB KASHYAP, SR-DR 7-11 SHRI MANISH J SHAH, AR SHRI SANJEEB KASHYAP, S R-DR 12 SHRI MEHUL K PATEL, AR SHRI G.S.SURYABANSHI, SR- DR DATE OF HEARING: 16-02-2012 DATE OF PRONOUNCEMENT: 17-02-2012 / // / ORDER PER BENCH:- THESE 12 APPEALS OF THE DIFFERENT ASSESSEES ARISE F ROM 12 DIFFERENT ORDERS OF LD. COMMISSIONER OF INC-TAX (APPEALS)-SURAT AS PER DETAILS BELOW:- SL NO. ITA NO. CIT(A) ORDER DATED A.Y 1 221/AHD/2008 CIT(A)-V DT. 13-10-2007 2001-02 2 3842/AHD/2007 CIT(A) -V DT. 06-08-2007 2000-01 3 222/AHD/2008 CIT(A)-V DT. 26-10-2007 2004-05 4 234/AHD/2008 CIT(A)-III DT. 01-11-2007 1999-00 5 1117/AHD/2008 CIT(A)-IV DT 19-11-2007 1999-00 6. 1484/AHD/2009 CIT(A)-V DT. 18-02-2009 2001-02 7 2236/AHD/2008 CIT(A)-V DT.22-09-2008 2001-02 8 2235/AHD/2008 CIT(A)-V DT.22-09-2008 1999-00 9 3629/AHD/2008 CIT(A)-V DT.22-09-2008 2000-01 10 282/AHD/2009 CIT(A)-V DT. 25-11-2008 2002-03 11 2232/AHD/2008 CIT(A)-V DT. 12-03-2008 2004-05 12 345/AHD/2010 CIT(A)-V DT. 21-12-2009 2003-04 2. SINCE THE ISSUES IN ALL THE APPEALS OF THE ASSES SEES ARE IDENTICAL IN NATURE, THEREFORE ALL THE APPEALS ARE BEING DECIDED BY THIS CONSOLIDATED ORDER. THE LD. PAGE 4 COUNSELS MR. MANISH J SHAH AND MR. MEHUL K PATEL AR GUED AND PRAYED BEFORE THE BENCH TO TAKE UP THE LEGAL ISSUE FIRST. THE LEGAL I SSUE AS POINTED OUT BY THE LD. COUNSELS FOR THE ASSESSEE IS IDENTICAL IN NATURE IN ALL THE APPEALS I.E. CHALLENGING THE REOPENING OF THE ASSESSMENT U/S.147 R.W.S. 148 OF T HE ACT. 3. FIRST OF ALL, WE TAKE UP THE APPEAL OF THE ASSES SEE IN ITA NO.221/AHD/2008 IN THE CASE OF SMT. FALGUNIBEN C PATEL V. ITO FOR THE A.Y. 2001-02 AND OUR DECISION IN THE SAID APPEAL SHALL BE APPLICABLE IN ALL THE OTHE R ELEVEN APPEALS MENTIONED HEREINABOVE. 4. THE BRIEF FACTS IN THE APPEAL OF THE ASSESSEE IN ITA NO.221/AHD/2008 ARE THAT THE ASSESSEE HAD ORIGINALLY FILED THE RETURN OF INC OME ON 30-07-2001, WHICH APPEARS TO BE PROCESSED. SUBSEQUENTLY A SURVEY U/S.133A WAS CARRIED OUT ON 11-03-2005 IN THE CASE OF ONE SHRI PANKAJ DANAWALA, CHARTERED ACC OUNTANT ON THE BASIS OF INFORMATION IN RESPECT OF THIS SURVEY RECEIVED FROM THE INVESTIGATION WING, SURAT. A NOTICE U/S.148 OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE ON 24-03-2006. THE PROCEEDINGS OF ASSESSMENT WAS STARTED ON THE RE TURN FILED ORIGINALLY AS REQUESTED BY THE ASSESSEE. THE ASSESSING OFFICER AS KED THE DETAILS IN SUPPORT OF THE RETURN FILED AND THE CAPITAL ACCOUNT OF THE ASSESSE E IN PARTICULAR THE OPENING BALANCE CLAIMED AS ON 1 ST APRIL, 1995 AT RS.8,57,574/-. THE SAID FIGURE OF O PENING CAPITAL IS BORNE OUT AT PAGE-31 OF THE IMPOUNDED FILE NO. 3557 . IN THIS WAY, EVERY YEAR HE CLAIMED FICTITIOUS INCOME FOR THE PARTICULAR YEAR A ND INCREASED CAPITAL OF THE ASSESSEE. IN THIS CASE, IT IS NOTICED THAT THE ENTI RE INCOME AND CAPITAL IS PERTAINED TO SHRI PRAKASH P PATEL OR HIS GROUP CALLED SHRI PRAK ASH PATEL GROUP AS EXPLAINED BY SHRI PANKAJ DANAWALA, THE CA OF THE ASSESSEE. IT CA N BE SAID THAT THE BENEFICIARY I.E. SHRI PRAKASH PATEL GROUP MUST HAVE BEEN HAVING HI S UNACCOUNTED INCOME AT THE TIME OF CREATION OF CAPITAL IN THE NAME OF THE ASSE SSEE TO THE EXTENT OF CLAIM MADE. THERE MUST BE A VIEW IN THE MIND OF SHRI PRAKASH P PATEL AND HIS GROUP THAT THE INCOME WOULD BE EASILY BROUGHT FOR THEIR BENEFIT IN THE YEAR WHEN IT WAS OFFICIALLY NEEDED. IN COURSE OF THE SURVEY, IT WAS FOUND THAT SHRI DANAWALA HAD FILED RETURNS OF INCOME IN THE NAMES OF SEVERAL PERSONS INCLUDING HI S CLIENTS, WHERE HE HAD INTRODUCED HUGE AMOUNTS OF BOGUS CAPITAL. THE METHO DOLOGY ADOPTED WAS ACCEPTED IN HIS STATEMENT RECORDED IN COURSE OF THE SURVEY, WHEN CERTAIN PAPERS RELATING TO THE PAGE 5 ASSESSEE WERE ALSO FOUND. THE AO THEREFORE HAD SUFF ICIENT REASON TO BELIEVE THAT INCOME OF THE ASSESSEE FOR THE YEAR, HAD ESCAPED AS SESSMENT. AFTER THIS CAME TO THE NOTICE OF THE AO, HE HAD NO OTHER OPTION BUT TO INITIATE PROCEEDINGS U/S.147. 5. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSES SING OFFICER FOR REOPENING ASSESSMENT VIDE PAGE-21 TO 23 OF HIS ORDER. 6. BEFORE US THE LD. COUNSELS, MR. MAJISH J SHAH AN D MR. MEHUL K PATEL ARGUED THAT THE ASSESSEE CHALLENGED THE REOPENING OF THE A SSESSMENT ON THE GROUND THAT REASONS RECORDED BY THE ASSESSING OFFICER DO NOT CO NNECT THE ASSESSEE WITH THE INFORMATION AND ALSO WITH ANY ESCAPEMENT OF INCOME IN THAT YEAR. SO FAR AS OPENING CAPITAL WAS CONCERNED, IT WAS ALREADY DISCLOSED IN THE RETURN FILED ON 30-07-2001. IN ABSENCE OF ANY MATERIAL SHOWING THAT THOSE CAPITAL WAS BOGUS OR THAT IT WAS INCOME DURING THIS YEAR IT COULD NOT BE ADDED AS THE INCOM E OF THE ASSESSEE. LD. COUNSELS REFERRED TO THE REASONS RECORDED AND SUBMITTED THAT AO HAS MADE BOGUS CAPITAL FROM THE PRECEDING ASSESSMENT YEARS WHICH HAS BEEN BROUGHT FORWARD. MERE GENERAL INFORMATION RECORDED IN THE REASONS WILL NO T EMPOWER THE AO TO REOPEN THE ASSESSMENT U/S. 147 R.W.S. 148. THERE HAS TO BE A L IVE NEXUS BETWEEN INFORMATION IN POSSESSION OF THE AO AND THE ASSESSEE AND ESCAPEMEN T OF INCOME IN RESPECT OF ASSESSMENT YEAR SOUGHT TO BE REOPENED. THEY SUBMITT ED THAT THERE ARE VARIOUS JUDGMENTS ON THIS ISSUE. 7. AGAINST THIS, LD. SR-DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ORIGINAL ASSESSMENT WAS COMPLETED U/ S 143(1) THEREFORE PRESENT INFORMATION IS SUFFICIENT TO REOPEN THE ASSESSMENT. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IN ORDER TO EXAMINE WHETHER REASONS RECORDED BY THE AS SESSING OFFICER CONFER JURISDICTION UPON HIM TO REOPEN THE ASSESSMENT AS E MANATED FROM AO'S ORDER AT PAGE-2(A) WHICH IS REPRODUCED AS UNDER:- A. REASON FOR REOPENING OF ASSESSMENTU PAGE 6 3. A SURVEY U/S. 133A OF I.T.. ACT, 1961 WAS CARRI ED OUT IN THE CASE OF ONE SHRI PANKAJ DANAWALA (C.A) BY THE D.D.I.T.(INV)-II, SURAT ON 11-03-2005. SHRI PANKAJJ DANAWALA IS A PRACTICING CHARTERED ACCOUNTA NT. DURING THE COURSE OF SURVEY, HE WAS FOUND TO HAVE CREATED LARGE NUMBER O F CAPITAL BUILD UP CASES. THE MODUS OPERANDI ARE FRAUDULENT AND THEY ARE OF M AINLY TWO CATEGORIES. IN THE FIRST CATEGORY IS INFLATION OF OPENING OF CAPIT AL SUBSTANTIALLY FOR EXAMPLE IN THE CLOSING BALANCE OF THE FINANCIAL YEAR ENDING 31 .03.2001 IS RS.1 LAC, THE OPENING CAPITAL BALANCE OF THE BEGINNING OF THE YEA R I.E. 1.04.2001 IS RS.16 LACS., HENCE, THE CAPITAL BALANCE HAS JUMPED BY RS .,15 LACS. IN THIS WAY, SHRI PANKAJ DANAWALA CREATED BOGUS CAPITAL IN THE CASES OF HIS VARIOUS CLIENTS/CLIENT GROUPS. THE FOLLOWING SIX CASES ASSE SSED IN THIS WARD ARE MENTIONED BELOW UNDER THIS CATEGORY FOR EXAMPLE. THE ANALYSIS OF ABOVE REASONS INDICATED THAT ASSESS MENT IS REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM ADDL. DIT, INVESTIGATI ON WING, SURAT. IT IS INDICATED THAT SHRI DANAWALA WAS CREATING BOGUS CAPITAL IN THE RET URN OF INCOME OF VARIOUS PERSONS FILED BY HIM. THIS BOGUS CAPITAL WAS USED BY HIM TO LAUNDER MONEY. A MODUS OPERANDI OF CREATING BOGUS CAPITAL WAS DESCRIBED BY HIM. THE DY. DIT, INVESTIGATION WING, SURAT FORWARDED A LIST OF PERSONS WHO WERE CL AIMED TO BE THE BENEFICIARIES OF BOGUS CAPITALS. THE ASSESSEE WAS ALSO ONE OF THE BE NEFICIARY. ON THIS BASIS, ASSESSING OFFICER INFERRED WITH THERE HAS BEEN INT RODUCTION OF BLACK MONEY THROUGH THIS RETURN OF INCOME FOR WHICH THE ASSESSEE IS RES PONSIBLE FOR ALL THE CONSEQUENTIAL ACTIONS EITHER OF HAVING CONNIVANCE WITH SHRI PANKA J DHANAWALA OR HAS BEEN ABATED BY HIM BY INTRODUCING THE UNEXPLAINED CAPITALS. IN THIS REGARD WE REFER TO PROVISIONS CONTAINED U/S.147 AND 149 AS UNDER:- 147. INCOME ESCAPING ASSESSMENT. IF THE ASSESSING OFFICER, HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153, ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER I NCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION , OR RECOMPUTED THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTERS IN THIS S ECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSM ENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOU R YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEA BLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF TH E FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECT ION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT FOR THAT ASSESSMENT YEAR. PAGE 7 EXPLANATION-1 . PRODUCTION BEFORE THE ASSESSING OFFICER OF ACCOUN T BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENCE COULD W ITH DUE DILIGENCE HAVE BEEN DISCOVERED BY THE ASSESSING OFFICER WILL NOT N ECESSARILY AMOUNT TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROV ISO. EXPLANATION 2 . FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING S HALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX H AS ESCAPED ASSESSMENT NAMELY:- (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF AN Y OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DU RING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME-TAX; (B) WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY TH E ASSESSING OFFICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOM E OR HAS CLAIMED EXCESSIVE LOSS, DEDUCTION , ALLOWANCE OR RE LIEF IN THE RETURN; (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT- (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDER ASSESSE D; OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RAT E OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCE SSIVE RELIEF UNDER THE ACT; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. 149. TIME LIMIT FOR NOTICE (1) NO NOTICE UNDER SE CTION 148 SHALL BE ISSUED FOR THE RELEVANT ASSESSMENT YEAR,- (A) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE CASE FALLS UNDER CLAUSE (B); (B) IF FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HAV E ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOU NTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MOR E FOR THAT YEAR. (2) THE PROVISIONS OF SUB-SECTION (1) AS TO THE ISS UE OF NOTICE SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 151. (3) IF THE PERSON ON WHOM A NOTICE UNDER SECTION 14 8 IS TO BE SERVED IS A PERSON TREATED AS THE AGENT OF A NON-RE SIDENT UNDER SECTION 163 AND THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION TO BE MADE INN PURSUANCE OF THE NOTI CE IS TO BE MADE ON HIM AS THE AGENT OF SUCH NON-RESIDENT, THE NOTICE SHALL PAGE 8 NOT BE ISSUED AFTER THE EXPIRY OF A PERIOD OF TWO Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 9. A COMBINED READING OF THESE 2 SECTIONS REQUIRE T HAT FOR REOPENING OF THE ASSESSMENT, FOLLOWING CONDITIONS SHOULD BE SATISFIE D: (1) ANY INCOME WHICH IS CHARGEABLE TO TAX (2) HAS ESCAPED ASSESSMENT (3) FOR ANY ASSESSMENT YEAR (4) ASSESSING OFFICER IS SATISFIED HAS REASON TO BE LIEVE ON T HE EXISTENCE OF ABOVE 3 PARAMETERS.. (5) IN CASE ASSESSMENT SOUGHT TO BE REOPENED FALLS BETWEEN 4 TO 6 YEARS THERE SHOULD BE ADDITIONAL CONDITION SATISFIED THAT ESCAPEMENT OF INCOME HAS BEEN DUE TO OMISSION OR FAILURE ON THE PART OF THE ASSESSEE (1) TO MAKE A RETURN U/S.139(1) OR IN RESPONSE TO NOTICE U /S. SECTION 142(1)/148(1) OR (2) TO DISCLOSE TRENDS OR FULLY AL L MATERIAL FACTS NECESSARY FOR THE RELEVANT ASSESSMENT YEAR WHEN WE APPLY ABOVE CONDITIONS TO THE REASONS RECOR DED, WE FIND THAT THE INFORMATION IN POSSESSION OF THE ASSESSING OFFICER, HAS NO RELATIONSHIP WITH ANY INCOME CHARGEABLE TO TAX. THERE IS ALSO NO MENTION THAT SUCH INCOME HAS NOT BEEN ASSESSED OR HAS ESCAPED ASSESSMENT AND FINALLY THER E IS NO CO-RELATIONSHIP OF ANY ALLEGED ESCAPEMENT WITH THE PRESENT ASSESSMENT YEAR . 9. THE LD. COUNSEL RELIED UPON THE DECISIONS OF ITA T AHMEDABAD A BENCH IN THE CASE OF TARAMANI M GATTANI V. ITO IN ITA NO.250/AHD/2007 DATED 30-10-2009, WHERE ON THE IDENTICAL ISSUE THE ITAT AHMEDABAD HAS HELD THAT THE REASONS RECORDED BY THE ASSESSING OFFICER CANNOT CONFER JUR ISDICTION ON THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT. ON PERUSAL OF THE SAID DE CISION OF ITAT AHMEDABAD IN THE CASE OF TARAMANI M GATTANI (SUPRA) WHICH IS ON THE IDENTICAL ISSUE WHERE A SURVEY WAS CARRIED OUT ON SHRI PANNAK DANAWALA. ON THE BASIS OF INFORMATION IN RESPECT OF SURVEY RECEIVED FROM INVESTIGATION WING, SURAT A NOTICE U/S 148 OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE I.E. TARAMANI M GATTANI . THE FACTS IN THE SAID CASE ARE IDENTICAL TO THE FACTS IN THE PRESENT CASE. THEREFORE, FOLLOWING THE ORDER OF CO-ORDINATE BENCH ON THE IDENTICAL FACTS AND ARG UMENTS MADE BY THE LD. COUNSELS OF MR. SHAH AND MR. PATEL AND ARGUMENTS OF LD. SR-D R AND ON PERUSAL OF THE FACTS ON RECORD, WE ARE OF THE VIEW THAT REASONS RECORDED BY THE ASSESSING OFFICER DO NOT REVEAL ANY LIVE NEXUS OF THE INFORMATION WITH THE A SSESSEE, AMOUNT OF INCOME, AS TO WHETHER IT IS CHARGEABLE TO TAX AND WHETHER IT HAS ESCAPED THE ASSESSMENT. ONCE PAGE 9 BASIC INGREDIENTS FOR ACQUIRING JURISDICTION U/S. 1 47 ARE NOT RECORDED BY THE AO THEN IT COULD NOT BE SAID THAT HE HAD ANY REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE PRESENT REASON SO RECOR DED CANNOT CONFER JURISDICTION ON THE AO TO REOPEN THE ASSESSMENT. ACCORDINGLY, RE OPENING OF THE ASSESSMENT IS CANCELLED. WE ACCORDINGLY DO NOT CONSIDER IT NECESS ARY TO DEAL THE ISSUE AND ANY OTHER GROUNDS ON MERIT. AS A RESULT, ASSESSMENT FRA MED BY THE AO IS CANCELLED AND APPEALS FILED BY THE ASSESSEES ARE ALLOWED. 10. IN THE RESULT, APPEALS OF ASSESSEES IN ITA NO,221/A HD/08, (2) 3842/AHD/07, (3) 222/AHD/08 (4) 234/AHD/08, (5) 111 7/AHD/08, (6) 1484/AHD/09, (7) 2236/AHD/08, (8), 2235/AHD/08, (9) 3629/AHD/08, (10), 282/AHD/09, (11), 2232/AHD/08 & (12) 345/AHD/10 ARE ALLOWED. 17/ 0 2 /2012 THIS ORDER PRONOUNCED IN OPEN COURT ON 17/02/ 2012 . SD/- SD/- ( G.C.GUPTA ) ( B.P. JAIN ) (VICE PRESIDENT) (ACCOUNTANT MEMBER) - 17/02/2012 '#$ DKP* %&'&() %&'&() %&'&() %&'&() '*( ' '*( ' '*( ' '*( ' / COPY OF ORDER FORWARDED TO:- 1. '),-. / APPELLANT 2. %/-. / RESPONDENT 3. $&1' 2 3 / CONCERNED CIT 4. 2 3- '), / CIT (A) 5. (67, %&'&&1, 2 '),, '&12, '#$ / DR, ITAT, AHMEDABAD 6. :; < / GUARD FILE. BY ORDER/ , /TRUE COPY/ =)/# )>,2 2 '),, '&12, '#$