Indra Pal Singh, Lucknow V. Income Tax Officer-1(2), Lucknow

ITA 721/LKW/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0392 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Invalid notice; Question of law; Tangible material; Accommodation entries; Reason to believe; Reassessment proceedings
• Section: 54F; 133(6); 147; 131; 68; 148

Judgement Text

I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 SHRI INDRA PAL SINGH, 4/4, VIPUL KHAND, GOMTI NAGAR, LUCKNOW. PAN:ANXPS 0254 L VS. INCOME TAX OFFICER-1(2), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-I, LUCKNOW DATED 19/08/2016. 2. AT THE OUTSET, LEARNED A. R. INVITED MY ATTENTIO N TO THE ADDITIONAL GROUNDS OF APPEAL WHICH WAS FILED ON 25/04/2018 AND SUBMITTED THAT THESE GROUNDS ARE LEGAL IN NATURE AND THE ISSUE RAISED IN THESE GROUNDS GOES TO THE ISSUE OF JURISDICTION AND THEREFORE, THE HON'BL E TRIBUNAL WAS EMPOWERED TO ADMIT THE SAME. RELIANCE IN THIS RESPECT WAS PL ACED ON THE ORDER OF HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERM AL POWER CO. LTD. VS. CIT 229 ITR 383 (SC) AND IT WAS SUBMITTED THAT HON' BLE SUPREME COURT IN THIS CASE HAD HELD THAT TRIBUNAL HAD JURISDICTION T O EXAMINE A QUESTION OF LAW WHICH AROSE FROM THE FACT AND WHICH HAD A BEARI NG ON THE TAX LIABILITY OF THE ASSESSEE. LEARNED A. R. SUBMITTED THAT THROUGH THESE ADDITIONAL GROUNDS THE ASSESSEE HAS CHALLENGED THAT REASONS RE CORDED WERE NOT VALID APPELLANT BY SHRI K. R. RASTOGI, C. A. RESPONDENT BY S HRI NIMISH MISHRA, D.R. DATE OF HEARING 14/09/2018 DATE OF PRONOUNCEMENT 18 / 09 /201 8 I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 2 REASONS RECORDED AS THE ASSESSING OFFICER DID NOT A PPLY HIS MIND AS TO HOW THE INCOME HAD ESCAPED ASSESSMENT. LEARNED A. R. IN VITED OUR ATTENTION TO THE COPY OF REASONS RECORDED, PLACED AT PAGE 24 OF THE PAPER BOOK, AND IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS JUST R ECORDED THAT ASSESSEE HAD MADE DEPOSITS IN BANK AND NOWHERE IN THESE REAS ONS HE HAS MADE ANY FINDINGS FROM THE RETURN OF INCOME AS TO HOW THE IN COME HAD ESCAPED. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HA D REQUIRED THE ASSESSEE VIDE NON STATUTORY LETTER DATED 14/11/2011 TO EXPLA IN THE DEPOSITS AND FOR WHICH THE ASSESSEE HAD REPLIED AND HAD SUBMITTED HI S PAN AND INFORMATION REGARDING FILING OF ORIGINAL RETURN OF INCOME. IT WAS SUBMITTED THAT THE ASSESSING OFFICER WITHOUT FURTHER VERIFYING THE CON TENTS OF THE INFORMATION WHICH WAS ALREADY ON RECORD IN THE FORM OF RETURN D ID NOT MAKE ANY SATISFACTION REGARDING ESCAPEMENT OF INCOME. IT WA S SUBMITTED THAT VARIOUS BENCHES OF HON'BLE TRIBUNAL AND VARIOUS HON'BLE HIG H COURTS HAVE HELD THAT IN THE REASONS RECORDED, THE ASSESSING OFFICER SHOU LD RECORD HIS SATISFACTION AFTER EXAMINATION FROM THE RETURN OF INCOME AND FRO M THE INFORMATION IN HAND THAT INCOME HAD ESCAPED ASSESSMENT. IT WAS SU BMITTED THAT MERE CASH DEPOSITS IN THE BANK CANNOT BE SAID TO BE INCO ME OF THE ASSESSEE AS THE CASH DEPOSITS CAN BE FROM VARIOUS OTHER SOURCES WHICH MAY NOT BE INCOME OF THE ASSESSEE. RELIANCE IN THIS RESPECT W AS PLACED ON A NUMBER OF CASE LAWS. OUR SPECIFIC ATTENTION WAS INVITED TO A N ORDER OF HON'BLE DELHI HIGH COURT IN THE CASE OF BIR BAHADUR SINGH SIJWALI VS. INCOME TAX OFFICER 53 TAXMANN.COM 366 AND FURTHER OUR ATTENTION WAS IN VITED TO A CASE LAW OF AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF GURPA L SINGH VS. INCOME TAX OFFICER [2016] 71 TAXMANN.COM 1-8 (AMRITSAR TRIB). OUR ATTENTION WAS ALSO INVITED TO AN ORDER OF HON'BLE DELHI HIGH COUR T IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. MEENAKSHI OVERSEAS ( P.) LTD. WHERE HON'BLE COURT HAD HELD THAT WHERE NO INDEPENDENT AP PLICATION OF MIND IS MADE BY THE ASSESSING OFFICER, THE NOTICE ISSUED U/ S 148 WAS VOID AB INITIO. I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 3 WITHOUT PREJUDICE IT WAS SUBMITTED THAT NON STATUTO RY NOTICE AND NOTICE U/S 133(6) DATED 01/03/2012 FOR VERIFICATION OF CASH DE POSITS WAS NOT LEGAL AS NO PROCEEDINGS WERE PENDING AT THE TIME OF ISSUE OF NOTICE U/S 133(6) AND ASSESSING OFFICER WAS NOT EMPOWERED TO ISSUE ANY NO TICE WITHOUT THE PRIOR APPROVAL OF PRINCIPAL DIRECTOR OR PRINCIPAL COMMISS IONER AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO THE PROVISO TO SECTION 133(6) OF THE ACT. LEARNED A. R. SUBMITTED THAT HON'BLE SUPREME COURT IN THE CASE OF INCOME TAX OFFICER, WARD-23(4), NEW DELHI VS. SKY VIEW CON SULTANTS (P.) LTD. [2018] 96 TAXMANN.COM 424 (SC) VIDE ORDER DATED 17 TH AUGUST, 2018 HAS HELD THAT THE NOTICE ISSUED U/S 131 WITHOUT THE AUT HORIZATION TO EXERCISE HIS POWER WERE INVALID AND THEREFORE, HAS DECIDED THE I SSUE IN FAVOUR OF THE ASSESSEE. LEARNED A. R. SUBMITTED THAT THE ASSESSI NG OFFICER DID NOT TAKE ANY APPROVAL AS REQUIRED BY THE ACT AND IN THIS RES PECT OUR ATTENTION WAS INVITED TO COPY OF ORDER SHEET ENTRIES PLACED AT PA GES 24 TO 26 OF THE PAPER BOOK. IT WAS SUBMITTED THAT THE PROCEEDINGS STARTE D ON 14/02/2014 WHEREBY ASSESSING OFFICER RECORDED THE REASONS AND NOWHERE IN THE ORDER SHEET THE REQUIRED PERMISSION HAS BEEN TAKEN. LEARN ED A. R. THEREFORE, ARGUED THAT THE REASONS RECORDED BY THE ASSESSING O FFICER ITSELF ARE NOT VALID AND THEREFORE, THE CONSEQUENT ASSESSMENT PROCEEDING S ARE ILLEGAL AND VOID AB INITIO. 3. WITHOUT PREJUDICE IT WAS ARGUED THAT ASSESSING O FFICER HAD NOT MADE ANY ADDITION ON ACCOUNT OF CASH DEPOSITS AND HAD MA DE ADDITION ON OTHER GROUNDS WHICH WERE ALSO NOT LEGAL IN VIEW OF THE DE CISION OF HON'BLE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF ANITA SRIVASTAVA IN I.T.A. NO.98/LKW/2017. 4. LEARNED D. R., ON THE OTHER HAND, SUBMITTED THAT THE RECORD OF OBTAINING THE PERMISSION FROM HIGHER AUTHORITY WAS NOT AVAILABLE WITH HIM AND IT WAS SUBMITTED THAT THE ASSESSING OFFICER MIG HT HAVE TAKEN THE I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 4 PERMISSION SEPARATELY. AS REGARDS THE OTHER LEGAL ISSUE OF NOTICE U/S 148, LEARNED D. R. ARGUED THAT SUFFICIENT REASONS WERE R ECORDED BY THE ASSESSING OFFICER. 5. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. THE ASSESSEE HAS TAKEN THE FOLLO WING ADDITIONAL GROUNDS OF APPEAL WHICH HAVE BEEN ACCEPTED IN VIEW OF THE R ATIO OF JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERM AL POWER CO. LTD. VS. CIT 229 ITR 383 (SC): 1. THAT THE NOTICE U/S 148 OF I.T. ACT DATED 14.02 .2014 IS AN INVALID NOTICE AS IT DOES NOT SPECIFY THE REASSESSM ENT ON THE BASIS OF CONCEALED INCOME AS PER SATISFACTION OF TH E A.O., HENCE SUBSEQUENT PROCEEDINGS ARE ALSO INVALID. 2. THAT INFORMATION ITSELF COULD NOT BE SUFFICIENT MATERIAL FOR FORMATION OF BELIEF. FURTHER, THERE WAS NO INVESTIG ATION OR EVIDENCE COLLECTED BY THE A. O. HAVING A NEXUS OR LIVE LINK OR RATIONAL CONNECTION WITH THE INCOME ESCAPING THE AS SESSMENT, HENCE THE REOPENING OF THE ASSESSMENT IS VOID. 3. THAT THERE IS NO ADDITION IN THE ASSESSMENT ON T HE REASONS RECORDED, HENCE OTHER ADDITIONS MADE BY LD. A. D. ARE NOT VALID AND PRESENT ASSESSMENT ORDER IS VOID AB I NITIO. THESE GROUNDS ARE LEGAL IN NATURE AND THEREFORE, TH ESE ARE BEING FIRST DISPOSED OF AS UNDER. FOR DISPOSAL OF THESE GROUND S IT IS IMPORTANT TO FIRST VISIT THE REASONS RECORDED WHICH ARE REPRODUCED BEL OW: IN THIS CASE AS PER INFORMATION AVAILABLE WITH THE DEPARTMENT, THE ASSESSEE HAS MADE TRANSACTIONS REGARDING CASH D EPOSITS TOTALING TO RS.29,50,000/- IN HIS BANK ACCOUNT MAIN TAINED WITH STATE BANK OF INDIA, HAZRATGANJ, LUCKNOW DURING THE FINANCIAL YEAR 2008-09 RELEVANT ASSESSMENT YEAR 2009-10. IN C OMPLIANCE OF NON STATUTORY LETTER DATED 14.11.2011 ASSESSEE H AS SUBMITTED HIS PAN AND INFORMATION REGARDING FILING OF RETURN BUT HAS NOT FURNISHED SOURCE OF SAID CASH DEPOSITS. FUR THER A NOTICE I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 5 U/S 133(6) DATED 01.03.2012 AND SUBSEQUENT REMINDER LATTER DATED 10.01.2014 WERE ISSUED REGARDING VERIFICATION OF SAID CASH DEPOSITS BUT NO COMPLIANCE HAS BEEN MADE BY TH E ASSESSEE IN THIS REGARD TILL DATE. THUS IT IS CLEAR THAT THE ASSESSEE HAS NO EXPLANATION TO OFFER IN THIS REGARD . IN VIEW OF THE ABOVE FACTS, I HAVE REASON TO BELIE VE THAT THE INCOME OF THE ASSESSEE TO THE TUNE OF RS.24,41, 902/- (RS.29,50,000/- -RS.5,08,098/-) HAS ESCAPED ASSESSM ENT FOR THE ASSESSMENT YEAR 2009-10. PROCEEDINGS U/S 147 AR E BEING INITIATED AND NOTICE U/S 148 ISSUED ACCORDINGLY. 5.1 FROM THE ABOVE REASONS RECORDED, IT IS APPARENT THAT THE ASSESSING OFFICER HAD IN HIS POSSESSION CERTAIN INFORMATION R EGARDING DEPOSIT OF CASH IN BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICE R WANTED ASSESSEE TO FURNISH SOURCE OF CASH DEPOSIT TO WHICH THE ASSESSE E FURNISHED HIS PAN AND HAD ALSO FURNISHED INFORMATION REGARDING FILING OF HIS RETURN. THE ASSESSING OFFICER DID NOT EXAMINE THE ORIGINAL RETURN OF INCO ME TO FIND OUT THE SOURCE OF CASH DEPOSITS BUT HE AGAIN REQUIRED THE ASSESSEE TO EXPLAIN SOURCE OF CASH DEPOSITS TO WHICH THE ASSESSEE DID NOT REPLY A ND THEREFORE, HE HELD THAT THE INCOME OF ASSESSEE HAD ESCAPED ASSESSMENT AND THEREFORE, HE ISSUED NOTICE U/S 148. I FIND THAT THIS LEGAL ISSU E ARGUED BY LEARNED A. R. REGARDING NON APPROVAL OF ISSUE OF NOTICE U/S 131 O F THE ACT DO NOT FIND PART OF ADDITIONAL GROUNDS OF APPEAL THEREFORE, THIS ISS UE DO NOT REQUIRE ANY ADJUDICATION. HOWEVER, ON GROUNDS NO. 1 & 2, I FIND THAT THE ASSESSING OFFICER HIMSELF HAS NOTED THAT ASSESSEE HAD FURNISH ED PAN AND HAD ALSO FURNISHED INFORMATION REGARDING FILING OF ORIGINAL RETURN OF INCOME. THE ASSESSING OFFICER WANTED ASSESSEE TO FURNISH SOURCE OF CASH DEPOSITS TO WHICH ASSESSEE DID NOT REPLY. I FIND THAT ASSESSIN G OFFICER SHOULD HAVE APPLIED HIS MIND FROM THE DOCUMENTS ALREADY ON RECO RD AND SHOULD HAVE COMPARED THE INFORMATION WHICH WAS IN HIS POSSESSIO N AND ONLY AFTER VERIFYING SUCH INFORMATION SHOULD HAVE ARRIVED AT T HE CONCLUSION REGARDING ESCAPEMENT OF INCOME. THE MERE DEPOSIT OF CASH IN THE BANK ACCOUNT I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 6 CANNOT GIVE RISE TO A BELIEF OF ASSESSING OFFICER T HAT INCOME HAD ESCAPED ASSESSMENT AS THE CASH DEPOSIT CAN BE FROM ANY OTHE R SOURCE OTHER THAN INCOME. SUCH SATISFACTION WAS NEEDED BY THE ASSESS ING OFFICER WHICH HAS NOT BEEN MADE. HON'BLE DELHI TRIBUNAL IN THE CASE OF BIR BAHADUR SINGH SIJWALIA VS. INCOME TAX OFFICER HAS DECIDED THE SIM ILAR ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER: 8. LET US, IN THE LIGHT OF THIS LEGAL POSITION, R EVERT TO THE FACTS OF THE CASE BEFORE US. ALL THAT THE REASONS R ECORDED FOR REOPENING INDICATE IS THAT CASH DEPOSITS AGGREGATIN G TO RS 10,24,100 HAVE BEEN MADE IN THE BANK ACCOUNT OF THE ASSESSEE, BUT THE MERE FACT THAT THESE DEPOSITS HAV E BEEN MADE IN A BANK ACCOUNT DOES NOT INDICATE THAT THESE DEPOSITS CONSTITUTE AN INCOME WHICH HAS ESCAPED ASSESSMENT. THE REASONS RECORDED FOR REOPENING THE ASSESSMENT DO NO T MAKE OUT A CASE THAT THE ASSESSEE WAS ENGAGED IN SOME BU SINESS AND THE INCOME FROM SUCH A BUSINESS HAS NOT BEEN RE TURNED BY THE ASSESSEE. AS WE DO NOT HAVE THE LIBERTY TO EXAM INE THESE REASONS ON THE BASIS OF ANY OTHER MATERIAL OR FACT, OTHER THAN THE FACTS SET OUT IN THE REASONS SO RECORDED, IT IS NOT OPEN TO US TO DEAL WITH THE QUESTION AS TO WHETHER THE ASSESSE E COULD BE SAID TO BE ENGAGED IN ANY BUSINESS; ALL THAT IS TO BE EXAMINED IS WHETHER THE FACT OF THE DEPOSITS, PER SE, IN THE BA NK ACCOUNT OF THE ASSESSEE COULD BE BASIS OF HOLDING THE VIEW THA T THE INCOME HAS ESCAPED ASSESSMENT. THE ANSWER, IN OUR HUMBLE UNDERSTANDING, IS IN NEGATIVE. THE ASSESSING OFFICE R HAS OPINED THAT AN INCOME OF RS 10,24,100 HAS ESCAPED ASSESSME NT OF INCOME BECAUSE THE ASSESSEE HAS RS 10,24,100 IN HIS BANK ACCOUNT BUT THEN SUCH AN OPINION PROCEEDS ON THE FA LLACIOUS ASSUMPTION THAT THE BANK DEPOSITS CONSTITUTE UNDISC LOSED INCOME, AND OVERLOOKS THE FACT THAT THE SOURCES OF DEPOSIT NEED NOT NECESSARILY BE INCOME OF THE ASSESSEE. OF COURS E, IT MAY BE DESIRABLE, FROM THE POINT OF VIEW OF REVENUE AUTHOR ITIES, TO EXAMINE THE MATTER IN DETAIL, BUT THEN REASSESSMENT PROCEEDINGS CANNOT BE RESORTED TO ONLY TO EXAMINE T HE FACTS OF A CASE, NO MATTER HOW DESIRABLE THAT BE, UNLESS THE RE IS A REASON TO BELIEVE, RATHER THAN SUSPECT, THAT AN INC OME HAS ESCAPED ASSESSMENT. I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 7 9. LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO A NUMBER OF JUDICIAL PRECEDENTS IN SUPPORT OF HER STA ND THAT EVEN DEPOSITS IN THE BANK ACCOUNT, AS HAVING COME TO THE NOTICE OF THE ASSESSING OFFICER THROUGH AIR, CAN BE REASON EN OUGH FOR HOLDING THE BELIEF THAT INCOME HAS ESCAPED ASSESSME NT. SHE HAS RELIED UPON THE DECISIONS IN THE CASES OF CIT V S NOVA PROMOTERS & FINLEASE PVT LTD [(2012)342 ITR 169] BU T THEN NONE OF THE QUESTIONS BEFORE I.T.A. NO.: 3814/DEL/1 1 ASSESSMENT YEAR: 2008-09 PAGE 5 OF 6 HONBLE HIGH C OURT HAD ANYTHING TO DO WITH REOPENING OF ASSESSMENT AND THI S DECISION CAN NOT, THEREFORE, BE TAKEN AS AN AUTHORITY ON THE LEGAL ISSUE WHICH DID NOT EVEN COME UP FOR SPECIFIC ADJUDICATIO N BEFORE THEIR LORDSHIPS. AS FOR HER RELIANCE ON HONBLE SUP REME COURTS JUDGMENT IN THE CASE OF PHOOL CHAND BAJRANG LAL VS ITO [(1993) 203 ITR 456], THAT WAS CASE IN WHICH THEIR LORDSHIPS CONCLUDED THAT THE AO RIGHTLY INITIATED THE REASSE SSMENT PROCEEDINGS ON THE BASIS OF SUBSEQUENT INFORMATION, WHICH WAS SPECIFIC RELEVANT AND RELIABLE, AND AFTER RECORDING THE REASONS FOR FORMATION OF HIS OWN BELIEF THAT IN THE ORIGINA L ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD NOT DISCLOSED THE MAT ERIAL FACTS TRULY AND FULLY AND, THEREFORE, INCOME CHARGEABLE T O TAX HAD ESCAPED ASSESSMENT AND WE ARE UNABLE TO SEE ANYTHI NG ON THE FACTS OF THE PRESENT CASE WHICH ARE MATERIALLY SIMI LAR TO THE FACTS OF THE SAID CASE. AS REGARDS HER RELIANCE ON THE DECISION OF A COORDINATE BENCH IN THE CASE OF MITHILA CREDIT SE RVICES LIMITED VS ITO (ITA NO. 1078/DEL/2013; ORDER DATED 23.5.201 4), IT IS IMPORTANT TO BEAR IN MIND THE FACT THAT IT WAS A CA SE IN WHICH THE ASSESSING OFFICER HAD REOPENED THE ASSESSMENT O N THE BASIS OF RECEIPT OF INFORMATION FROM DIRECTORATE OF INVESTIGATION, AND, AS NOTED BY THE ASSESSING OFFICER IN THE REASO NS RECORDED FOR REOPENING THE ASSESSMENT, THE NAME OF THE ASSE SSEE FIGURES AS ONE OF THE BENEFICIARIES OF THESE ALLEGE D BOGUS TRANSACTIONS IN THE INFORMATION GIVEN BY THE DIREC TORATE. IF THE ASSESSEE WAS A BENEFICIARY OF SUCH A SCAM, THE INCO ME WAS INDEED TO HAVE BEEN TAXED IN ITS HANDS BUT THEN IN THE CASE BEFORE US THE ONLY REASON FOR REASSESSMENT PROCEEDI NGS WAS THE FACT OF DEPOSIT OF BANK ACCOUNT WHICH BY ITSELF DOES NOT LEAD TO INCOME BEING TAXED IN THE HANDS OF THE ASSESSEE. LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO SEVERAL OTHER JUDICIAL PRECEDENTS IN SUPPORT OF THE PROPOSITION T HAT AT THE STAGE OF INITIATION OF REASSESSMENT PROCEEDINGS, AL L THAT IS TO BE SEEN AS EXISTENCE, RATHER THAN ADEQUACY, OF THE MAT ERIAL TO COME TO THE CONCLUSION THAT INCOME HAS ESCAPED ASSE SSMENT. I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 8 TO US, THERE CANNOT BE ANY, AND THERE IS NO, DOUBT ON THE CORRECTNESS OF THIS PROPOSITION BUT THEN, AS WE HAV E ELABORATELY EXPLAINED EARLIER IN THIS ORDER, THE MATERIAL MUST INDICATE INCOME ESCAPING ASSESSMENT RATHER THAN DESIRABILITY OF FURTHER PROBE IN THE MATTER WHICH MAY OR MAY NOT LEAD TO IN COME ESCAPING THE ASSESSMENT. ON THE BASIS OF REASONS AS RECORDED IN THIS CASE, SUCH AN INFERENCE ABOUT INCOME ESCAPI NG ASSESSMENT, IN OUR HUMBLE UNDERSTANDING, CANNOT BE DRAWN. 10. IN VIEW OF THE REASONS SET OUT ABOVE, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE REASONS RECORDED BY THE ASSESSING OFFICER, AS S ET OUT EARLIER, WERE NOT SUFFICIENT REASONS FOR REOPENING THE ASSESSMENT PROCEEDINGS. WE, THEREFORE, QUASH THE REASSESSMENT PROCEEDINGS. AS THE REASSESSMENT ITSEL F IS QUASHED, ALL OTHER ISSUES ON MERITS OF I.T.A. NO.: 3814/DEL/11 ASSESSMENT YEAR: 2008-09 PAGE 6 OF 6 THE ADDITIONS, IN THE IMPUGNED ASSESSMENT PROCEEDINGS, ARE RENDERED ACADE MIC AND INFRUCTUOUS. 5.2 SIMILARLY I FIND THAT HON'BLE DELHI HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. MEENAKSHI OVERSEAS ( P.) LTD. [2017] 82 TAXMANN.COM 300 (DELHI) HAS HELD AS UNDER: SECTION 68, READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961 - CASH CREDIT (ACCOMMODATION ENTRIES) - ASSESSMENT YEAR 2004- 05 - INFORMATION WAS RECEIVED FROM DIRECTOR (INVEST IGATION) THAT DURING YEAR UNDER CONSIDERATION, ASSESSEE HAD RECEI VED ACCOMMODATION ENTRIES FROM A BENEFICIARY - NOTICE U NDER SECTION 148 WAS ISSUED AND AN ASSESSMENT ORDER WAS PASSED BY ASSESSING OFFICER TREATING CREDIT RECEIVED AS UNEXP LAINED INCOME UNDER SECTION 68 -WHETHER SINCE THERE WAS NO INDEPE NDENT APPLICATION OF MIND BY ASSESSING OFFICER TO TANGIBL E MATERIAL AND, CONCLUSIONS OF ASSESSING OFFICER WERE REPRODUC TION OF CONCLUSION IN INVESTIGATION REPORT, REASONS FAILED TO DEMONSTRATE LINK BETWEEN TANGIBLE MATERIAL FIND FORMATION OF RE ASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT AND, CONSEQUENTLY, REASSESSMENT WAS UNJUSTIFIED - HELD, YES [PARAS 36 AND 37] [IN FAVOUR OF ASSESSEE]. I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 9 FURTHER I FIND THAT ASSESSING OFFICER HAS NOT MADE ANY ADDITION ON ACCOUNT OF CASH DEPOSITS IN THE BANK AND HAS MADE ADDITION ON OTHER GROUNDS WHICH FACT IS VERIFIABLE FROM ASSESSMENT ORDER. THIS GRI EVANCE HAS BEEN TAKEN BY ASSESSEE AS GROUND NO. 3 OF HIS APPEAL. 6. I FIND THAT LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF ANITA SRIVASTAVA VS ACIT IN I.T.A. NO.98/LKW/2017 HAS HEL D THAT WHERE A CASE HAS BEEN REOPENED U/S 148 ON ACCOUNT OF SOME INFORMATIO N AND IF ADDITION IS NOT MADE ON ACCOUNT OF THAT INFORMATION THEN NO OTH ER ADDITION CAN BE MADE ON ANY OTHER GROUND. THE FINDINGS OF HON'BLE TRIBUNAL ARE REPRODUCED BELOW: 7. WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIV AL CONTENTIONS AND WE FIND THAT THE REASONS RECORDED UNDER SECTION 148 OF THE ACT, WHICH PROMPTED ASSESSMENT TO BE FRAMED UNDER SECTIO N 147/143(3) OF THE ACT, IS ESSENTIALLY IN RELATION TO THE POSSE SSION OF INFORMATION BY THE DEPARTMENT REGARDING PURCHASE OF IMMOVEABLE PRO PERTY VALUED AT RS.62,92,500/- AND IN RESPECT OF THE SAME VARIOUS D ETAILS WERE ASKED FOR I.E. PAN, COPY OF ITR AND BANK ACCOUNT STATEMEN TS. WE FIND THAT THE REASON, FOR WHICH THE ASSESSING OFFICER FEELS T HAT INCOME MIGHT HAVE ESCAPED ASSESSMENT, IS WITH REGARD TO THE PURC HASE AMOUNT OF RS.62,92,500/- AND ON A PERUSAL OF THE PAPER BOOK, WE FIND THAT ALL THE RELEVANT DETAILS IN RELATION TO THE TRANSACTION AS SPECIFIED IN THE REASONS RECORDED BY THE ASSESSING OFFICER WERE SUBM ITTED BY THE ASSESSEE TO THE DEPARTMENT BUT WHILE COMPLETING THE ASSESSMENT, NO ADDITION/DISALLOWANCE UNDER THIS HEAD WAS MADE. TH EREAFTER THE ASSESSING OFFICER HAS PROCEEDED TO DISALLOW THE CLA IM MADE UNDER SECTION 54F OF THE ACT WHICH DOES NOT FORM SUBJECT MATTER OF THE REASONS RECORDED FOR INITIATION OF PROCEEDINGS UNDE R SECTION 147/148 OF THE ACT. WHAT WE ARE TO EXAMINE IS WHEN ON A P ARTICULAR GROUND OR REASONS RECORDED BY THE ASSESSING OFFICER, HE RE OPENS THE ASSESSMENT BUT MAKES NO ADDITION ON THOSE GROUNDS A ND REASONS, THEN WHETHER THE ASSESSING OFFICER CAN MAKE ADDITIO N IN THAT ASSESSMENT ORDER FOR SOME OTHER GROUNDS OR REASON, WHICH DO NOT FORM PART OF THE REASONS FOR REOPENING AT ALL. IN OUR HUMBLE UNDERSTANDING, IT IS IN THE NEGATIVE. 8. IN THE CASE OF CIT VS. MOHMED JUNED DADANI (SUPR A), THE HON'BLE GUJARAT HIGH COURT OPINED THAT WHEN ON THE GROUND ON WHICH I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 10 THE REOPENING OF ASSESSMENT IS BASED, NO ADDITIONS ARE MADE BY THE ASSESSING OFFICER IN THE ORDER OF ASSESSMENT, HE CA NNOT MAKE ADDITIONS ON SOME OTHER GROUNDS WHICH DID NOT FORM PART OF THE REASONS RECORDED BY HIM. IN THIS JUDGMENT, WE ALSO FIND REFERENCE MADE TO THE DECISION OF THE HON'BLE BOMBAY HIGH COU RT IN THE CASE OF CIT VS. JET AIRWAYS (SUPRA) WHEREIN IT WAS HELD CON SIDERING AN IDENTICAL SITUATION INTERPRETING THE PROVISIONS CON TAINED IN SECTION 147 OF THE ACT THAT EVEN BY VIRTUE OF INTRODUCTION OF E XPLANATION (3) TO THE SAID SECTION, THE SITUATION WOULD NOT BE DIFFERENT, WHICH MEANS THAT IF UPON ISSUANCE OF A NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER DOES NOT ASSESS THE INCOME WHICH HE HAS REA SON TO BELIEVE, HAD ESCAPED ASSESSMENT AND WHICH FORMS THE BASIS OF A NOTICE UNDER SECTION 148 OF THE ACT, IT IS NOT OPEN TO THE ASSES SING OFFICER TO ASSESS INDEPENDENTLY ANY OTHER INCOME WHICH DOES NOT FORM THE SUBJECT MATTER OF THE NOTICE. THIS REASONING GIVEN BY THE HON'BLE BOMABY HIGH COURT IN THE CASE OF CIT VS. JET AIRWAYS (SUPR A) ALSO FOUND IN AGREEMENT WITH THE JUDGMENT OF THE HON'BLE DELHI HI GH COURT WHICH HAS TAKEN SIMILAR VIEW IN THE CASE OF RANBAXY LABOR ATORIES LTD. VS. CIT REPORTED IN 336 ITR 136 WHEREIN THE HON'BLE DEL HI HIGH COURT HAS OBSERVED THAT THE HEADING OF SECTION 147 IS I NCOME ESCAPING ASSESSMENT AND THAT OF SECTION 148 IS ISSUE OF NOTICE WHERE INCOME ESCAPED ASSESSMENT . SECTION 148 IS SUPPLEMENTARY AND COMPLIMENTARY TO SECTION 147. SECTION 147 MANDATES RECORDING OF REASONS TO BELIEVE BY THE ASSESSING OFFICER THAT IN COME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. ALL THESE CONDITIONS A RE REQUIRED TO BE FULFILLED TO ASSESS OR REASSESS THE ESCAPED INCOME CHARGEABLE TO TAX. HOWEVER, THE LEGISLATURE COULD NOT BE PRESUMED TO H AVE INTENDED TO GIVE BLANKET POWERS TO THE ASSESSING OFFICER THAT O N ASSUMING JURISDICTION UNDER SECTION 147 OF THE ACT REGARDING ASSESSMENT OR REASSESSMENT OF THE ESCAPED INCOME, HE WOULD KEEP O N MAKING ROVING INQUIRY AND THEREBY INCLUDING DIFFERENT ITEM S OF INCOME NOT CONNECTED OR RELATED WITH THE REASONS TO BELIEVE, O N THE BASIS OF WHICH HE ASSUMED JURISDICTION. 9. WE ALSO FIND THAT IN THE CASE OF CIT VS. SHRI RA M SINGH REPORTED IN 306 ITR 343, THE DIVISION BENCH OF THE HON'BLE R AJASTHAN HIGH COURT HAS HELD THAT THE ASSESSING OFFICER WAS JUSTI FIED IN INITIATING PROCEEDINGS UNDER SECTION 147/148 OF THE ACT, BUT T HEN, ONCE HE CAME TO THE CONCLUSION THAT THE INCOME, WITH RESPEC T TO WHICH HE HAD ENTERTAINED 'REASON TO BELIEVE' TO HAVE ESCAPED ASS ESSMENT, WAS FOUND TO HAVE BEEN EXPLAINED, HIS JURISDICTION CAME TO A STOP AT THAT, AND HE DID NOT CONTINUE TO POSSESS JURISDICTION, TO PUT TO TAX, ANY OTHER INCOME, WHICH SUBSEQUENTLY CAME TO HIS NOTICE , IN THE COURSE OF I.T.A. NO.721/LKW/2016 ASSESSMENT YEAR:2009-10 11 THE PROCEEDINGS, WHICH WERE FOUND BY HIM, TO HAVE E SCAPED ASSESSMENT. 10. AFTER TAKING GUIDANCE FROM THE JUDICIAL PRINCIP LES LAID DOWN IN THE AFORESAID CASES AND CONSIDERING THE FACTS AND C IRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE REASONS RECORDED UNDER SECTION 148 OF THE ACT DOES NOT PERT AIN TO THE ISSUE OF CLAIM UNDER SECTION 54F AND, THEREFORE, THE DISALLO WANCE MADE BY THE ASSESSING OFFICER IS ARBITRARY, ILLEGAL AND WITHOUT JURISDICTION. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) A ND ANNUL THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER UNDER SE CTION 147/143(3) OF THE ACT AND DELETE THE DISALLOWANCE MADE UNDER S ECTION 54F OF THE ACT. WE HAVE ALLOWED THE LEGAL GROUND IN FAVOUR OF THE ASSESSEE, THEREFORE, ALL OTHER GROUNDS ON MERITS TAKEN BY THE ASSESSEE BECOME ACADEMIC AND INFRUCTUOUS. 7. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN VIEW THE JUDICIAL PRECEDENTS, I ALLOW ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE AND THEREFORE, I QUASH THE ASSESSMENT ORDE R AS THE NOTICE ISSUED U/S 148 IS VOID AB INITIO AND ASSESSMENT IS ALSO VO ID AB INITIO THEREFORE, ALL THE PROCEEDINGS ARE ILLEGAL. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 18/09 /2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:18/09/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW