Dheeraj Yadav, Gurgaon V. ITO WARD - 46(5), New Delhi

ITA 6701/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9964 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRI PRAKASH DUBEY
• Keywords: Salary income; Non compliance; Reason to believe; Set aside
• Section: 69A; 2(A); 13; 147; 148; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC-1 : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA.NO.6701/DEL./2019 ASSESSMENT YEAR 2011-2012 SHRI DHEERAJ YADAV, K1-31, NEW PALAM VIHAR, GURGAON. HARYANA PIN 122 001. PAN AAYPY2157N [ VS. THE INCOME TAX OFFICER, WARD-46(5), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SHANTANU JAIN, ADVOCATE FOR REVENUE : MR. SRI PRAKASH DUBEY, SR.DR DATE OF HEARING : 23.12.2020 DATE OF PRONOUNCEMENT : 01.01.2021 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-16, NEW DELHI, DATED 28.05.2019, FOR THE A.Y. 2011-2012, CHALLENGING THE REOPENING OF THE ASSESSMENT UNDER SECTION 147/148 O F THE I.T. ACT, 1961 AND ADDITION OF RS.11,07,160/-. 2 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES THROUGH VIDEO CONFERENCING AND PER USED THE MATERIAL ON RECORD. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT PROCEEDI NGS UNDER SECTION 147 OF THE I.T. ACT, 1961 WAS INITIAT ED ON THE BASIS OF INFORMATION THAT ASSESSEE HAD DEPOSITED CA SH AMOUNTING TO RS.11,07,160/- WITH ICICI BANK AND ALS O EARNED COMMISSION PAYMENT AMOUNTING TO RS.2,533/- F ROM KARVAT HEALTHCARE SERVICES PVT. LTD., IN ASSESSMENT YEAR UNDER APPEAL AND NO RETURN HAVE BEEN FILED. THE A.O , THEREFORE, PROCEEDED TO FRAME RE-ASSESSMENT FOR NON COMPLIANCE OF STATUTORY NOTICE, NON-COOPERATION ATT ITUDE OF THE ASSESSEE AND PASSED EX-PARTE ASSESSMENT ORDER U NDER SECTION 147/144 OF THE I.T. ACT, 1961 AND MADE ADDI TIONS OF RS.11,07,160/- ON ACCOUNT OF UNEXPLAINED MONEY UNDE R SECTION 69A OF THE I.T. ACT, 1961 AND FURTHER MADE ADDITION OF RS.756/- ON ACCOUNT OF INTEREST EARNED. THE INCO ME WAS COMPUTED AT RS.11,07,916/-. THE LD. CIT(A) DISMISSE D THE APPEAL OF ASSESSEE. 3 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 4. LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO TH E REASONS RECORDED BY THE A.O. FOR REOPENING OF THE ASSESSMENT, COPY OF WHICH IS FILED AT PAGES 2 AND 3 OF THE PB. THE SAME READS AS UNDER : ANNEXURE-A THE ASSESSEE IS AN INDIVIDUAL WHOSE JURISDICTION LIES IN THIS WARD. AS PER ITS. RETAILS, THE ASSESSE E HAS NOT FILED ANY RETURN OF INCOME. 2. INFORMATION HAS BEEN RECEIVED FROM ITO WARD-46(4) VIDE F.NO.ITO/W-46(4)/2017-18/645, DATED 22.03.2018, RECEIVED IN THIS OFFICE ON 22.03.2018. 3. THE DEPARTMENT IS HAVING INFORMATION THAT DURING THE F.Y. 2010-11 THE ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.11.07.160/- WITH ICICI BANK LTD., AND RECEIVED COMMISSION PAYMENTS AMOUNTING TO RS.2,533/- FROM KARVAT HEALTH CARE SERVICES PVT LTD. 4 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 4. SINCE THE ASSESSEE HAD NOT FILED ROI FOR THE YEAR UNDER CONSIDERATION, THE SOURCE OF CASH DEPOSIT MADE AND COMMISSION PAYMENTS RECEIVED BY THE ASSESSEE AMOUNTING TO RS.11,09,693/- REMAINS UNEXPLAINED AND ALSO THEY EXCEEDS THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO TAX AND FOR FILING THE RETURN FOR A.Y. 2011-12; I HAVE REASON TO BELIEVE THAT ASSESSEES INCOME CHANGEABLE TO TAX HAS ESCAPED ASSESSMENT. 5. IN VIEW OF THE INFORMATION AS ABOVE, EXPLANATION 2(A) TO SECTION 147 IS APPLICABLE IN TH E CASE WHICH LAYS DOWN THAT THE FOLLOWING SHALL ALSO BE DEEMED TO BE CASE WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME TAX. 5 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 6. IN VIEW OF THE ABOVE FACT, CASE, I HAVE THE REASONS TO BELIEVE THAT A SUM OF RS.11,09,693/- ON ACCOUNT OF CASH DEPOSIT IN BANK AND COMMISSION PAYMENTS RECEIVED BY THE ASSESSEE DURING THE YEAR CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. SINCE, FOUR YEARS HAVE LAPSED BUT NOT MORE THAN SIX YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, IT IS THEREFORE, PROPOSED AS PER THE PROVISIONS OF SECTION 149(1) (B) READ WI TH SECTION 151(3) OF THE I.T ACT, 1961 THAT APPROVAL F OR INITIATING ACTION U/S 147 OF INCOME TAX ACT, 1961 MAY BE GRANTED IN THE CASE. IT IS PERTINENT TO MENTION HERE THAT IN THIS CASE THE ASSESSEE HAS CHOSEN NOT TO FILE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ALTHOUGH THE TOTAL INCOME OF THE ASSESSEE HAD EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO TAX AS DISCUSSED IN PARAGRAPH 4 ABOVE AND THE ASSESSEE WAS ASSESSABLE UNDER THE ACT. IN VIEW OF THE ABOVE, THE PROVISIONS OF CLAUSE (A) OF 6 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. EXPLANATION 2 TO SECTION 147 ARE APPLICABLE TO FACT S OF THIS CASE AND THE ASSESSMENT YEAR UNDER CONSIDERATION IS DEEMED TO BE A CASE WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IN THIS CASE, MORE THAN FOUR YEARS BUT NOT MORE THAN SIX YEARS HAVE ELAPSED FROM THE' END OF THE RELEVANT ASSESSMENT YEAR. HENCE NECESSARY SANCTION TO ISSUE NOTICE U/S 148 IS BEING OBTAINED SEPARATELY FROM PR. COMMISSIONER OF INCOME TAX /ADD./JCIT UNDER THE AMENDED PROVISIONS OF SECTION 151 OF THE I.T. ACT W.E.F. 01.06.2016. DATE : 23.03.2018 SD/- SUBHASH CHA ND PLACE NEW DELHI INCOME TAX OFFIC ER, WARD-46(5), NEW DELHI. 4.1. HE HAS ALSO REFERRED TO COPY OF THE BANK STATEMENT AND BANK FLOW STATEMENT TO SHOW THAT IN I CICI BANK THERE ARE CASH DEPOSITS OF RS.11,49,750/-, THE REFORE, A.O. HAS RECORDED INCORRECT FACTS IN THE REASONS FO R REOPENING OF THE ASSESSMENT THAT THERE WAS A CASH D EPOSIT OF RS.11,07,160/-. HE HAS SUBMITTED THAT IN THE CAS E OF SHRI 7 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. ABRAR AHMAD QASIMI, DELHI VS., ITO, WARD-46(5), NEW DELHI IN ITA.NO.3177/DEL./2017, FOR THE A.Y. 2007-2008, T HE ITAT DELHI SMC-BENCH, DELHI VIDE ORDER DATED 01.06.2018 HAS HELD THAT CASH DEPOSIT PER SE CANNOT BE INCOME OF THE ASSESSEE AND RE-ASSESSMENT PROCEEDINGS HAVE BEEN QUASHED. THE ORDER IS REPRODUCED AS UNDER : IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.3177/DEL./2017 ASSESSMENT YEAR 2007-2008 SHRI ABRAR AHMAD QASIMI, DELHI 110 066. C/O. M/S. RRA TAX INDIA D-28, SOUTH EXTENSION, PART- 1, NEW DELHI - 110049. PAN AHGPA5521K VS THE INCOME TAX OFFICER, WARD-46(5), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SOMIL AGARWAL, ADVOCATE FOR REVENUE : MS. ASHIMA NEB, SR. D.R. DATE OF HEARING : 21.05.2018 DATE OF PRONOUNCEMENT : 01.06.2018 8 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-16, NEW DELHI, DATED 06 TH MARCH, 2017, FOR THE A.Y. 2007-2008. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE NOTICE UNDER SECTION 148 FOR REOPENING OF THE ASSES SMENT WAS ISSUED ON 21.02.2014 AFTER OBTAINING THE APPROVAL O F JCIT, NEW DELHI. THE ASSESSEE IN RESPONSE TO THE NOTICE, FILED RETURN OF INCOME DECLARING INCOME OF RS.99,200/-. D URING THE YEAR, ASSESSEE HAD DECLARED SALARY INCOME ONLY. THE REASONS FOR REOPENING OF THE ASSESSMENT HAVE BEEN PROVIDED TO THE ASSESSEE. THE ASSESSEE WAS ASKED TO EXPLAIN NATURE OF SOURCE OF ENTRY OF RS.14,75,000/- IN S.B. ACCOUNT O F THE ASSESSEE. THE A.O. NOTED THAT ASSESSEE HAS NOT FILE D SATISFACTORY EXPLANATION REGARDING CASH DEPOSIT IN AXIS BANK, THEREFORE, IT WAS TREATED AS UNEXPLAINED DEPOSIT UN DER SECTION 69A OF THE I.T. ACT AND MADE THE ADDITION O F RS.14,75,000. 9 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 3. THE ASSESSEE CHALLENGED THE ABOVE ADDITION BEFO RE LD. CIT(A) AND IT WAS SUBMITTED THAT ASSESSEE IS MA ULVI FOR ARABIC RELIGIOUS AND TEACHER AND TEACHING ARABIC IN THE MASJID. HE HAS PRESTIGE IN THE SOCIETY AND TRUSTWOR THY IN THE COMMUNITY. PEOPLE COMING TO HIM FOR PIOUS PURPOSES, GIVING MONEY FOR SAFE DEPOSIT AND TAKE BACK WHENEVER REQUI RED. THE ASSESSEE DEPOSITED THE AMOUNT IN BANK ACCOUNT W HICH WAS LATER ON WITHDRAWN AND RETURNED TO THEM. ASSESS EE GETS SALARY FROM WAQF BOARD, DELHI. 4. AT THE APPELLATE STAGE, ASSESSEE WAS ASKED TO PRODUCE LENDERS FOR THEIR STATEMENTS. THE ASSESSEE PRODUCED SOME OF THE PERSONS AT THE APPELLATE STAGE. THEIR S TATEMENTS WERE RECORDED IN WHICH THEY HAVE CONFIRMED TO HAVE GIVEN AMOUNTS TO THE ASSESSEE. LD. CIT(A), HOWEVER, DO NO T ACCEPT THE CONTENTION OF ASSESSEE BECAUSE LENDERS ARE NOT HAVING ENOUGH MONEY AND THAT THEY THEMSELVES HAVE BANK ACC OUNT, THEREFORE, THERE WERE NO REASON TO DEPOSIT AMOUNT I N THE BANK ACCOUNT OF THE ASSESSEE. APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 10 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 5. THE ASSESSEE IN THE PRESENT APPEAL CHALLENGED T HE REOPENING OF THE ASSESSMENT AS WELL AS ADDITION OF RS.14,75,000/-. LEARNED COUNSEL FOR THE ASSESSEE SU BMITTED THAT ASSESSEE OBTAINED REASONS FOR REOPENING OF THE ASSESSMENT UNDER RTI ACT, 2005, COPY OF WHICH IS FI LED ON RECORD, IN WHICH, A.O. HAS RECORDED REASONS FOR REO PENING OF THE ASSESSMENT. THE SAME READS AS UNDER : AS PER INFORMATION AVAILABLE IN ITD SYSTEM OF THE INCOME TAX DEPARTMENT, SH ABRAR AHMAD QASIMI DURING THE FINANCIAL YEAR 2006-07 RELEVANT TO A.Y. 2007- 08 HAS MADE CASH DEPOSIT OF RS.14,75,000/- IN SAVIN G BANK ACCOUNT. THE ASSESSEE HAS NOT FILED TAX RETURN FOR A.Y. 2007-08. AFTER EXAMINATION OF INFORMATION AVAI LABLE IN ITD SYSTEM BY INDEPENDENT APPLICATION OF MIND, I HAVE REASON TO BELIEVE THAT INCOME OF RS.14,75,000/ -FOR FINANCIAL YEAR 2006-07 RELEVANT TO ASSESSMENT YEAR 2007 -08 HAS ESCAPED ASSESSMENT WITH IN MEANING OF SEC 147 OF INCOME TAX ACT, 1961. THE CASE FOR ASSESSMENT YEAR 2007 -08 IS TAKEN UP FOR ASSESSMENT U/S. 147 OF I.TAX ACT, 1961. 11 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 5.1. HE HAS SUBMITTED THAT MERE DEPOSIT OF THE CAS H IN THE BANK ACCOUNT IS NOT SUFFICIENT TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, THEREFORE , REOPENING OF THE ASSESSMENT IS BAD IN LAW. IT WAS S UBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE BY ORDER OF ITAT, SMC-BENCH IN THE CASE OF SHRI ARVIND YADAV VS . ITO, WARD-1(1), NEW DELHI ITA.NO.1508/DEL./2017 FOR THE A.Y. 2008-2009, DATED 07.07.2017, IN WHICH THE TRIBUNAL ON IDENTICAL FACTS, SET ASIDE THE ORDERS OF THE AUTHOR ITIES BELOW AND QUASHED THE REOPENING OF THE ASSESSMENT VIDE OR DER DATED 07.07.2017. COPY OF THE ORDER IS PLACED ON RE CORD. 6. LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORIT IES BELOW. 7. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM OF TH E VIEW THAT REOPENING OF THE ASSESSMENT IS BAD IN LAW . THE A.O. MERELY NOTED IN THE REASONS THAT SINCE THERE I S AN INFORMATION AVAILABLE ON ITD SYSTEM OF THE DEPARTME NT THAT ASSESSEE HAS MADE CASH DEPOSITS OF RS.14,75,000/- I N HIS BANK ACCOUNT, THEREFORE, INCOME CHARGEABLE TO TAX H AS ESCAPED ASSESSMENT. THE ITAT, DELHI BENCH IN THE CA SE OF 12 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. SHRI ARVIND YADAV (SUPRA) CONSIDERING THE IDENTICAL FACTS HELD THAT THE DEPOSIT IN THE BANK ACCOUNT PER SE CANNOT BE THE INCOME OF THE ASSESSEE. THIS IS A MERE SUSPICION OF THE A.O. BASED ON INCORRECT FACT THAT INCOME CHARGEABLE TO T AX HAS ESCAPED ASSESSMENT AND ACCORDINGLY, QUASHED THE REO PENING OF THE ASSESSMENT. THE FINDINGS OF THE TRIBUNAL IN PARA 8 OF THE ORDER ARE REPRODUCED AS UNDER: 8. IN THIS CASE THE ASSESSING OFFICER AFTER OBTAIN ING THE AIR INFORMATION WANTED TO VERIFY THE SAME AND ISSUE D A LETTER OF ENQUIRY TO THE ASSESSEE. THE ASSESSING OF FICER THUS DID NOT APPLY HIS INDEPENDENT MIND TO THE INFORMATI ON RECEIVED FROM AIR. SINCE NO PROCEEDINGS WERE PENDIN G BEFORE THE ASSESSING OFFICER WHEN HE ISSUED A LETTER OF EN QUIRY TO THE ASSESSEE, THEREFORE, SUCH ENQUIRY LETTER WAS NO T VALID IN EYES OF LAW. THEREFORE, THE ASSESSEE WAS NOT REQUIR ED TO RESPOND TO INVALID LETTER OF ENQUIRY ISSUED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER IN THE ABSENCE OF RE PLY OF THE ASSESSEE PRESUMED THAT CASH DEPOSITED IN THE BANK A CCOUNT HAS ESCAPED ASSESSMENT. THE DEPOSIT IN THE BANK ACC OUNT PER SE CANNOT BE INCOME OF THE ASSESSEE. IT IS MERE SUSPICION OF THE ASSESSING OFFICER BASED ON INCORRECT FACT TH AT INCOME 13 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE ISSUE IS THEREFORE COVERED IN FAVOUR OF ASSESSEE BY ORDER OF ITAT SMC DELHI BENCH IN THE CASE OF TAJENDRA KUMAR GHAI (SUPRA). IN VIEW OF THIS MATTER, I AM OF THE VIEW T HAT THE ASSESSING OFFICER HAS WRONGLY ASSUMED JURISDICTION U/S 147 OF THE INCOME TAX ACT FOR THE PURPOSE OF REOPENING OF THE ASSESSMENT. I ACCORDINGLY SET ASIDE THE ORDERS OF T HE AUTHORITIES BELOW AND QUASH THE REOPENING OF THE ASSESSMENT IN THE MATTER. RESULTANTLY, THE ADDITION MADE IN THE REASSESSMENT WOULD STAND DELETED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 7.1. THE ISSUE IS, THEREFORE, COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE DELHI TRIBUNAL IN T HE CASE OF SHRI ARVIND YADAV (SUPRA). FOLLOWING THE REASONS FO R DECISION FOR THE SAME, I SET ASIDE THE ORDERS OF THE AUTHORI TIES BELOW AND QUASH THE REOPENING OF THE ASSESSMENT IN THE MA TTER. RESULTANTLY, THE ADDITION MADE IN THE RE-ASSESSMENT WOULD STAND DELETED AND APPEAL OF ASSESSEE IS ALLOWED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 14 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. 4.2. HE HAS SUBMITTED THAT A.O. HAS NOT MADE ANY ADDITION ON ACCOUNT OF COMMISSION PAYMENT IN THE RE - ASSESSMENT ORDER, THEREFORE, A.O. HAS RECORDED WRON G FACTS IN THE REASONS FOR REOPENING OF THE ASSESSMENT AND THERE WAS A COMPLETE NON-APPLICATION OF MIND. THEREFORE, THE REOPENING OF THE ASSESSMENT MAY BE QUASHED. HE HAS RELIED UPON THE JUDGMENTS OF HONBLE DELHI HIGH COURT IN T HE CASE OF PR. CIT VS., G & G PHARMA INDIA LTD., [2016] 384 ITR 147 (DEL.), PR. CIT VS., RMG POLYVINYL [2017] 396 ITR 5 (DEL.). 5. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT A.O. HAS CORRECTLY RECORDED REASONS FOR REOPENING OF THE ASS ESSMENT BECAUSE THERE WAS A CASH DEPOSIT IN THE ICICI BANK ACCOUNT OF THE ASSESSEE, THEREFORE, REOPENING OF THE ASSESS MENT IS JUSTIFIED IN THE MATTER. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS WELL SETTLED LAW THAT VALIDITY OF THE REOPENING OF THE ASSESSMENT IS TO BE DETERMINED WITH REFERENCE TO TH E REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. T HE ASSESSEE HAS FILED COPY OF THE REASONS RECORDED FOR 15 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. REOPENING OF THE ASSESSMENT IN THE PAPER BOOK WHICH IS REPRODUCED ABOVE IN WHICH THE A.O. HAS MENTIONED TH AT HE HAS INFORMATION THAT ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.11,07,160/- WITH ICICI BANK LTD., A ND ALSO RECEIVED COMMISSION OF RS.2,533/- AND THUS, TH ERE IS AN ESCAPEMENT OF INCOME TO THE TUNE OF RS.11,09,693 /-. THE ASSESSEE HAS FILED COPY OF THE REPLY FILED BEFORE T HE LD. CIT(A) IN THE PAPER BOOK IN WHICH IT IS CLEARLY EXP LAINED THAT A.O. HAS WRONGLY ASSUMED THAT ENTIRE CASH DEPOSITED IN THE ICICI BANK ACCOUNT WAS INCOME OF THE ASSESSEE AS TH ERE ARE DEPOSITS AND WITHDRAWALS MULTIPLE TIMES THROUGHOUT THE YEAR FOR BUSINESS PURPOSES. IT WAS ALSO EXPLAINED T HAT ASSESSEE IN THE BUSINESS DURING THE RELEVANT YEAR B ECAUSE ASSESSEE DEALS IN HARDWARE, SANITARY AND SANITARY-W ARE AT CHAWDI BAZAR, DELHI. THESE FACTS CLEARLY SHOW THAT TOTAL CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE WITH ICICI BANK LTD., PER SE MAY NOT BE THE INCOME OF THE ASSESSEE. THE ITAT, DELHI BENCH IN THE CASE OF SHRI ABRAR AHMAD QASIMI, DELHI VS., ITO, WARD-46(5), NEW DELHI (SUPRA), FOLLOWING OTHER DECISIONS OF THE TRIBUNAL HAS HELD 16 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. THAT DEPOSITS IN THE BANK ACCOUNT PER SE CANNOT BE THE INCOME OF THE ASSESSEE. THUS, IT WAS A MERE SUSPICI ON OF THE A.O. BASED ON INCORRECT FACTS THAT INCOME CHARGEABL E TO TAX HAS ESCAPED ASSESSMENT. FURTHER, LEARNED COUNSEL FO R THE ASSESSEE HAS FILED DETAILS OF THE DEPOSITS IN ICICI BANK TO SHOW THAT THERE ARE CASH DEPOSITS IN ICICI BANK AT RS.11,49,750/- AS AGAINST RS.11,07,160/- STATED BY THE A.O. IN THE REASONS FOR REOPENING OF THE ASSESSMENT . THUS, WRONG AND INCORRECT FACTS ARE ALSO RECORDED IN THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THUS, A.O . HAS RECORDED WRONG AND NON-EXISTING AND INCORRECT FACTS IN THE REASONS FOR REOPENING OF THE ASSESSMENT. THUS, THE A.O. WOULD NOT GET JURISDICTION TO REOPEN THE ASSESSMENT ON SUCH WRONG FACTS RECORDED IN THE REOPENING OF THE ASSESS MENT. THE A.O. HAS ALSO NOT APPLIED HIS MIND TO THE FACTS OF THE CASE AND MERELY BASED ON INFORMATION WITHOUT VERIFY ING THE SAME RECORDED REASONS FOR REOPENING OF THE ASSESSME NT. THUS, THE REOPENING OF THE ASSESSMENT CANNOT BE SUS TAINED IN LAW. WE ARE FORTIFIED IN OUR VIEW BY THE JUDGMEN TS OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS., 17 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. ATLAS CYCLE INDUSTRIES [1989] 180 ITR 319 [P&H], JU DGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS., SNG DEVELOPERS LTD., [2018] 404 ITR 312 (DEL.), JUDGMEN T OF HONBLE DELHI HIGH COURT IN THE CASE OF SHAMSHAD KH AN VS., ACIT [2017] 395 ITR 265 (DEL.) AND JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF SIEMENS INFORMATIO N SYSTEMS LTD., VS., ACIT & OTHERS [2007] 293 ITR 548 [BOM.]. IT MAY ALSO BE NOTED HERE THAT THOUGH A.O. HAS REFE RRED TO THE COMMISSION EARNED BY THE ASSESSEE IN ASSESSMENT YEAR UNDER APPEAL, BUT, NO ADDITION HAVE BEEN MADE IN TH E RE- ASSESSMENT ORDER. CONSIDERING THE ABOVE FACTS IN TH E LIGHT OF ABOVE JUDGMENTS AND ORDER OF THE TRIBUNAL IN THE CA SE OF SHRI ABRAR AHMAD QASIMI, DELHI VS., ITO, WARD-46(5) , NEW DELHI (SUPRA), IT IS CLEAR THAT A.O. HAS RECORDED I NCORRECT, WRONG AND NON-EXISTING REASONS FOR REOPENING OF THE ASSESSMENT AND ALSO FAILED TO VERIFY THE INFORMATIO N RECEIVED BY HIM BEFORE RECORDING THE REASONS FOR REOPENING O F THE ASSESSMENT. THUS, THERE WAS CLEARLY NON-APPLICATION OF MIND ON THE PART OF THE A.O. TO INITIATE THE RE-ASS ESSMENT PROCEEDINGS. THE A.O. WOULD NOT GET ASSUMPTION OF 18 ITA.NO.6701/DEL./2019 SHRI DHEERAJ YADAV, GURGAON. JURISDICTION LEGALLY TO FRAME THE RE-ASSESSMENT UND ER SECTION 147/148 OF THE I.T. ACT, 1961. IN VIEW OF THE ABOVE , WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND QUASH THE REOPENING OF THE ASSESSMENT. RESULTANTLY, ALL ADDIT IONS STAND DELETED. THE OTHER ISSUES ON MERIT ARE LEFT W ITH ACADEMIC DISCUSSION ONLY. ACCORDINGLY, THE APPEAL O F THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANIL CHATURVEDI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 01 JANUARY, 2021 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC-1 BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR, ITAT DELHI BENCH ES : DELHI.