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Shri Inder Jeet, Sohna, Gurgaon, C/o. Shri Kapil Goel, Advocate, F-26/124, Sector-7, Rohini, Delhi-085. vs. The Income Tax Officer, Ward – 2 (5), Gurgaon.
December, 03rd 2018
        IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCHES "SMC" : DELHI

   BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER

                   ITA.No.2740/Del./2018
                 Assessment Year 2011-2012

Shri Inder Jeet,                     The Income Tax Officer,
Sohna, Gurgaon,
PAN AIWPJ1144N                       Ward ­ 2 (5),
C/o. Shri Kapil Goel,          vs.
Advocate, F-26/124,
                                     Gurgaon.
Sector-7, Rohini, Delhi-085.
         (Appellant)                       (Respondent)

                For Assessee : Shri Kapil Goel, Advocate
                For Revenue : Shri S.L. Anuragi, Sr. D.R.
               ITA.No.1384 & 2647/Del./2018
                 Assessment Year 2008-2009

Shri Ashok Kumar,            The Income Tax Officer,
Ghaziabad. U.P.
PAN BVSPK8805K               Ward ­ 1 (1),
C/o.M/s. Sanjeev Anand & vs.
Associates, 77, Navyug
                             Ghaziabad.
Market, Ghaziabad-201001.
         (Appellant)               (Respondent)

                For Assessee : Shri Somil Aggarwal, Advocate
                For Revenue : Shri S.L. Anuragi, Sr. D.R.

             Date of Hearing : 08.11.2018
     Date of Pronouncement : 03.12.2018
                                    2
                      ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                            And Shri Ashok Kumar, Ghaziabad.


                               ORDER

             I have heard the Learned Representatives of both

the parties and perused the material available on record. The

issues are common in all the appeals. Therefore, all appeals

are decided through this consolidated order as under.


ITA.No.2740/Del./2018 (Shri Inder Jeet) :


2.           This appeal by Assessee has been directed against

the Order of the Ld. CIT(A)-1, Gurgaon, Dated 15.03.2008, for

the   A.Y.   2011-2012,     challenging       the     reopening       of   the

assessment under section 148 of the I.T. Act, 1961 and

addition of Rs.39 lakhs on account of cash deposited in the

bank account.


3.           Briefly facts of the case are that A.O. received

information that the assessee had deposited cash in his bank

account. The Assessing Officer accordingly recorded reasons

and issued notice under section 148 of the I.T. Act, 1961.

There was no compliance to the notice issued by the Assessing
                                  3
                    ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                          And Shri Ashok Kumar, Ghaziabad.


Officer. Thereafter the Assessing Officer provided number of

opportunities through issue of notice under section 142(1) but

there were no compliance. Final notice issued under section

142(1) was received back with the comments `refused'. The

Assessing Officer, therefore, treated it to be deemed service

and completed the assessment under section 144/147 of the

I.T. Act, dated 01.02.2016, thereby making addition of

Rs.39,00,000/-on account of unexplained cash deposit in the

bank account.


3.1.      The assessee challenged the above addition before

Ld. CIT(A) and it was contended that no notice have been

received by the assessee. The assessee also raised the

additional ground of appeal challenging the reopening of the

assessment under section 148 of the I.T. Act. It was contended

that mere cash deposit in bank account cannot be treated as

undisclosed   income    as    a   reason      for    income       escaping

assessment. There is no nexus between the prima facie

inference arrived in the reasons recorded and information
                                   4
                     ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                           And Shri Ashok Kumar, Ghaziabad.


available with the Assessing Officer. The reasons recorded

were highly vague, far-fetched and cannot be any stretch of

imagination lead to a conclusion of escapement of income and

there were merely presumption in nature. The Ld. CIT(A),

however, did not admit the additional ground of appeal.

However, the Ld. CIT(A) proceeded to decide the additional

ground of appeal on merit as well. The Ld. CIT(A) noted that

assessee has not filed return of income and has no valid

source of income to prima facie explain source of the cash

deposited in the bank account. Therefore, reopening of the

assessment was found valid. The Ld. CIT(A) held that A.O. was

fully justified in initiating the proceedings under section

147/148 of the I.T. Act, 1961. On merit also addition was

confirmed. The appeal of assessee was accordingly dismissed.


4.        Learned Counsel for the Assessee as regards

reopening of the assessment submitted that the reasons do

not disclose escapement of income and that mere cash deposit

in bank account is not sufficient to presume that it is a case of
                                    5
                      ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                            And Shri Ashok Kumar, Ghaziabad.


escapement of income. He has relied upon the Order of ITAT,

Delhi Bench in the case of (1) Shri Bhajan Lal, Delhi vs. ITO,

Ward-2, Narnaul, Haryana in ITA.No.3984/Del./2017, Dated

20.09.2018, (2) Order of ITAT, Delhi Bench in the case of Smt.

Swati Verma, New Delhi vs. ITO, Ward 3(4), Noida in

ITA.No.42/Del./2018, Dated 01.08.2018 and (3) Order of

ITAT, Delhi Bench in the case of Shri Jagat Singh, Noida vs.

ITO, Ward-1(3), Ghaziabad, Dated 04.09.2018.


5.        On    the   other     hand,         Ld.   D.R.   produced        the

assessment record and filed copy of the reasons recorded

under section 148 on record and relied upon the Orders of the

authorities below.


6.        I   have    considered        the    rival   submissions        and

perused the material available on record. The A.O. in this case

recorded the reasons for reopening of the assessment under

section 147/148 of the I.T. Act on 25.03.2015 which reads as

under :
                            6
             ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                   And Shri Ashok Kumar, Ghaziabad.


"Reasons for initiating proceedings under section

147/148 of the Income Tax Act, 1961.


As per information available with this office that

assessee has deposited cash Rs.10,00,000/- and

above in his saving bank account during the financial

year 2010-11 . The assessee has to filed return of

income for the assessment year 2011-12 as per

provisions of section 139(1) of the I.T. Act. As per

record, assessee has not filed return of income for the

Assessment year 2011-12. The above income is

chargeable to tax under the provisions of the Income

Tax Act 1961. Therefore ,the income amounting to Rs.

10,00,000/- which is chargeable to tax under the

provisions     of    I.T.   Act    and     any     other     income

subsequently comes to the notice of the AO during

course   of      assessment          proceedings         which      is

chargeable to tax has escaped assessment.
                                    7
                      ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                            And Shri Ashok Kumar, Ghaziabad.


            Notice under section 148 of the Income Tax Act, 1961

            is being issued.

                                                                   Sd/-
                                                      (Shamsher Singh)
                                                     Income Tax Officer
                                                   Ward 2(5), Gurgaon."

6.1.        The ITAT, Delhi Bench in the case of Shri Bhajan

Lal, Delhi vs. ITO, Ward-2, Narnaul, Haryana (supra), on

identical facts in paras 3 to 8 held as under :

       3.   Notice u/s 148 for A.Y. 2007-08 was issued to the

       assessee on 16.03.2012 by the Income Tax Officer, Ward-

       2, Rewari having territorial jurisdiction to the assess the

       income of the assessee after recording the following

       reasons:


            "As per AIR information for the F.Y. 2006-07 received in

            this office the assessee has made cash deposits of

            Rs.19,00,000/- in his bank account with PUNJAB

            NATIONAL Bank REWARI. A query notice was issued to

            the assessee on 24.01.2012. But no response has been
                         8
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.


received from the assessee. I, therefore, have reason to

believe that the assessee has deposited cash in his bank

account out of his income from unexplained sources.

Accordingly income to the extent of Rs.19,00,000/- and

any other income which subsequently comes to the notice

of the undersigned has escaped assessment within the

meaning of section 147 of the I.T. Act, 1961. Issue notice

u/s 148 of I. T. Act, 1961 for the assessment year 2007-08."


                                              Sd/- (O. P. Punia)
                                             Income-tax Officer,
                                               Ward-2, Rewari."


In response to notice u/s 148, no return of income

was filed by the assessee. Again notice u/s 142(1)

was issued on 17.08.2012 asking the assessee to

file his return of income but no return was filed in

compliance to this notice also and only power of

attorney of the advocate was filed. Later on the

jurisdiction of the case was assigned to the Income
                        9
          ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                And Shri Ashok Kumar, Ghaziabad.


Tax   Officer,    Ward-2,       Narnaul       by     the     Joint

Commissioner of Income Tax, Rewari Range, Rewari

vide office order dated 04.02.2013. Notice u/s 142(1)

calling the return of income along with query letter

was issued for 15.02.2013 and in response to this

assessment proceedings           were attended by the

counsel of the assessee but no return of income was

filed. But afterwards return of income declaring Nil

income was filed as well as written replies were filed

by the assessee's counsel. The Assessing Officer

observed that as per information available on record,

the assessee made cash deposit of Rs. 12,50,000/-

on 08.05.2006 and Rs. 6,50,000/- on 11.05.2006 in

his bank account maintained with branch office Ateli.

The assessee was asked a query dated 06.02.2013

as to explain the source of these cash deposits with

documentary evidence. The assessee vide reply

dated 11.03.2013 submitted that the deposit in the

bank account was out of the cash received from the
                         10
            ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                  And Shri Ashok Kumar, Ghaziabad.


agreement to sale. The Assessing Officer rejected the

plea of the assessee on the ground that no sale

deeds of the land 4 ITA No. 3984/Del/2017 was

executed till date for which alleged agreements were

made. The Assessing Officer observed that as per

material available on record during the F.Y. 2006-7

relevant to A.Y. 2007-08, the assessee sold his share

of agricultural land situated in the revenue estate of

VII-Padiyawas for Rs. 19,06,250/-. The Assessing

Officer held that the land sold by the assessee is

covered in the definition of capital assets in view of

the Notification issued by CBDT on 06.01.1994 F.No.

164/03/87ITAI, hence land in question is liable to

capital gain. Thus, the Assessing Officer made an

addition of Rs. 18,17,621 as capital gain of the

assessee.
                        11
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.


4.   Being aggrieved by the Assessment Order, the

assessee filed appeal before the CIT(A). The CIT(A)

dismissed the appeal of the assessee.


5.   The Ld. AR submitted that on identical i.e. exact

wordings the reasons recorded in the present case

has been dealt by the Tribunal in case of Krishan

Kumar vs. ITO (ITA No. 3985/Del/2017 A.Y. 2007-08

dated    15.12.2017)       wherein      the    appeal      of   the

assessee is allowed as reassessment proceedings

initiated by the AO are held to be void. Therefore, the

Ld. AR submitted that on the legal ground itself the

appeal be allowed.


6.   The Ld. DR relied upon the Assessment Order

as well as the order of the CIT(A), but could not

distinguish the facts of the case decided by the

Tribunal in case of Krishan Kumar (supra).


7.      We have heard both the parties and perused

all the relevant material available on record. It is
                        12
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.







pertinent to note here that the facts of the case in

case of Krishan Kumar (Supra) and in the present

case are identical in nature. In fact, the figures of

amount, Bank name and the notice issuing date are

exactly the same as well as the Assessment Year is

also the same. The Ld. DR also could not point out

any distinguishing factor with the order of the

Tribunal in case of Krishan Kumar and in present

assessee's case. The Tribunal held as under:


     "9.   I have considered the rival arguments made

     by both the sides, perused the orders of the AO and

     Ld. CIT(A) and the paper book filed on behalf of the

     assessee. I have also considered the various

     decisions cited before me. A perusal of the reasons

     recorded by the AO as reproduced by him in the

     assessment order shows that the reopening was

     made on account of cash deposit of Rs. 19 lakh in

     the bank account of the assessee. However, the AO
                  13
     ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                           And Shri Ashok Kumar, Ghaziabad.


in the assessment order has made addition of

Rs.36,26,500/- on account of capital gain and

interest income. Thus, there is no addition on

account of which the assessment was reopened by

issue of notice u/s 148 of the I.T. Act. Hon'ble Delhi

High Court in the case of Ranbaxy Laboratory Ltd.,

vs CIT(supra) has held that the assessing officer has

the jurisdiction to reassess the issues other than

issues in respect of which proceedings were

initiated. But he was not justified when the reasons

for the initiation of those proceedings seized to

survive. Since, in the instant case, there was no

addition made in the assessment order on account

of which the assessment was reopened but some

other additions have been made by the AO,

therefore, the AO does not have jurisdiction to

make such other additions in absence of any

addition made for which the assessment was re-
                   14
      ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                            And Shri Ashok Kumar, Ghaziabad.


opened in the light of the decision of Hon'ble Delhi

High Court in the case of Ranbaxy Laboratory Ltd.

(supra). Therefore, the re-assessment proceedings

have to be quashed.


10.   Even otherwise, also the reopening was made

on the basis of AIR information received that the

assessee has made cash deposit of Rs. 19 lakhs. I

find identical issue had come up before this bench

of the Tribunal in the case of Mahavir Prasad

(supra). The Tribunal vide ITA no. 924/Del/2015

order dated 09.10.2017 for assessment year 2007-08

had quashed such re-assessment proceedings by

observing as under :


      "9.    After going through the reasons

      recorded by the ITO, Ward-2, Rewari,

      am of the view that there is no nexus

      between        the     prima       facie     inference
             15
ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                      And Shri Ashok Kumar, Ghaziabad.


arrived in the reasons recorded and

information;          the      information          was

restricted        to cash      deposits in         bank

account but there was no material much

less     tangible,      credible,       cogent      and

relevant material to form a reason to

believe that cash deposits represented

income of the assessee; that even the

communication dated 24.1.2012 could

not     be     made       a    basis     to    assume

jurisdiction in view of the fact that such

an enquiry letter is an illegal enquiry

letter and thus cannot be relied upon;

that the proceedings initiated are based

on surmises, conjectures and suspicion

and therefore, 7 ITA no. 3985/Del/2017

the same are without jurisdiction; that

the reasons recorded are highly vague,
             16
ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                      And Shri Ashok Kumar, Ghaziabad.


far-fetched and cannot by any stretch of

imagination         lead      to     conclusion        of

escapement of income and these are

merely presumption in nature; that it is

a case of mechanical action on the part

of the AO as there is non-application of

mind much less independent application

of mind so as to show that he formed an

opinion based on any material that such

deposits represented income. Keeping in

view the facts and circumstances of the

present case and the case law applicable

in the case of the assessee, I am of the

considered view that the reopening in

the case of the assessee for the asstt.

Year in dispute is bad in law and

deserves to be quashed".
                         17
            ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                  And Shri Ashok Kumar, Ghaziabad.


11.   In view of the above discussion, the reassessment

proceedings initiated by the AO are held to be void. Since

assessee succeeds on this legal ground i.e. validity of

reassessment proceeding, therefore, grounds on merit

become academic in nature and therefore are not being

adjudicated.


12.   In the result, the appeal filed by the assessee is

allowed."

Thus, the issue contested herein is identical in the

present appeal. Thus, the assessee succeeds in the

legal ground regarding validity of reassessment

proceeding, therefore, we are not adjudicating the

grounds on merit as the same becomes academic in

nature. The appeal of the assessee is allowed.

8.    In result, appeal of the assessee is allowed.

Order pronounced in the Open Court on 20th

September, 2018".
                                         18
                            ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                                  And Shri Ashok Kumar, Ghaziabad.


6.2.          The ITAT, Delhi Bench in the case of Arvind Yadav,

New         Delhi     vs.      ITO,      Ward-1(1),         New        Delhi       in

ITA.No.1508/Del./2017, Dated 07.07.2017 in paras 6 to 8

held as under :


       6.     I have considered the rival submissions. It is well
       settled      law     that   the    validity     of   the    reassessment
       proceedings is to be determined on the basis of the
       reasons recorded by the Assessing Officer. The copy of the
       reasons is filed at page 1 of the paper book and the same
       reads as under: -


       "Name & address of the assessee : Sh. Arvind Kumar Yadav
                            S/o Sh Harish Chander, Ghaziabad.

       Assessment Year              2008-09              PAN - NA

             Reasons for issue of notice u/s 148 of I.T. Act, 1961

             16.03.2015:           In this case Non PAN AIR Information

             has been received the assessee has deposited cash of

             Rs.41,00,000/- in his S.B. A/c during F.Y. 2007-08.

             Since, the PAN of the assessee is not known and also

             the return the A.Y. 2008-09 is not available on record,
                        19
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.


to verify the transaction, q letters were issued to the

assessee to furnish, the particulars of PAN, 1TR etc. to

explain the source of cash deposit in bank account.

However, no response has been received from the

assessee till date. Thus, the cash credited to the I

account of the assessee remains unexplained.


      Therefore, I have reason to believe that on

 account of failure on the part the assessee to furnish

 his return of income/to disclose his correct and

 income, the income chargeable to tax for the

 assessment     year     2008-09       escaped       assessment

 within the meaning of section 147 of the I.T. Act,

 1961.

                                                  ITO, W -1(l),
                                                  GZB"

7.    The Id. counsel for the assessee relied upon

the order of the ITAT Delhi SMC Bench in the case of

Tejendra Kumar Ghai vs. ITO (supra) in which on

identical issues, reassessment has been quashed.
                                 20
                   ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                         And Shri Ashok Kumar, Ghaziabad.


     The order up to the para 10 is reproduced as under:-


      "IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCH -`SMC' NEW DELHI
     BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
               ITANos. 970,97l/Del/2017
             ASSESSMENT YEARS: 2011-12, 2012-2013

    Tajendra Kumar Ghai
    C/o M/s. RRA Taxindia,
    D-28, South Extension Part-1
    New Delhi - 110 049
    PAN ALUPG5605N                              (Appellant)

                                 Vs.
     IT O - 1(5)
     Rudrapur                                 (Respondent)


Per BHAVNESH SAINI, Judicial Member

                             ORDER

       Both the appeals by the same assessee are

directed against different orders of Ld. CIT(A) dated 3rd

November, 2016 for asstt. Year 2011-12 and dated 16th

November,     2016         for    asstt.      year      2012-13.        Ld.

Representatives of both the parties mainly argued in asstt.

year 2011-12 and have submitted that issues are same in
                             21
                ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                      And Shri Ashok Kumar, Ghaziabad.


both the appeals. Therefore for purpose of disposal of both

the appeals 1 decide the appeal of assessee for asstt.

year 2011-12 as under :-

2.   I have heard Ld. Representatives of both, the par ties

and perused the material on record.

3.   In this appeal assessee challenged the assumption

of jurisdiction u/s 147 to 151 of the I.T. Act and additions

of Rs.13,91,657/-.

4.   Briefly the facts of the case are that assessee filed

return of income declaring income at Rs.2,37,940/- on 29th

March, 2013. The AO noticed that there were total cash

deposits of Rs.63,27,996/- in assessee's saving bank

account with Punjab National Bank, Corporation Bank

and Axis Bank, Rudrapur. The assessee was asked to

explain the cash deposits within the time. However no

reply is filed. The Assessing Officer thereafter recorded the

reasons for the opening of the assessment and issued a

notice u/s. 148 of the I.T. Act on 16th March, 2014. No
                            22
               ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                     And Shri Ashok Kumar, Ghaziabad.


assessee did not explain the source of the cost deposit in

the bank accounts. The AO as per information obtained

u/s 133(6) from the aforesaid banks calculated peak of

the said accounts and made the addition of Rs. 13,91,

657/- treated the same as income from business for year

under consideration.

5.   The assessee challenged the reopening of the

assessment as well as addition on merit before Ld. CIT(A).

However the Ld. CIT(A) dismissed both the grounds of

appeals of the assessee in principle, however, AO was

directed to compute the income of a ssessee after giving

credit to the turn over already disclosed u/s 44 AD of the

I.T. Act. The appeal of assessee was thus partly allowed.


6.   Ld. Counsel for assessee referred to the reasons

recorded for reopening of assessment as are reproduced

in para 3 .3 of the appellate order the same reads as

under :
                                23
                   ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                         And Shri Ashok Kumar, Ghaziabad.


"In this case on AIR information was received that assessee has

been entered into transaction worth Rs. 63,27,996/- in his bank

account.

In order to verify the genuineness and correctness of this AIR

information a verification was issued on dated 16.1.2014 and

17.2.2014 to the assessee which were duly served up on the

assessee itself. Through this verification letter the assessee was

required to furnish following information

(i)          Details of cash deposit of Rs. 63/27,996/ - during the

F.Y. 2010-11. Also produced other details of investment other than

mentioned above effected during the year with full details.

(ii)    Produce your statement of all Bank Account in your name or

in name of your dependent family members. Also give detailed

narration of each credit and debit entry reflecting in Bank Statement

explaining the source/purposes thereof.

(iii)   If you are farmer, furnish copy of khasra-khatuni evidencing

ownership proof and also the proof of selling of agriculture produce

relating to the period under consideration.
                                 24
                    ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                          And Shri Ashok Kumar, Ghaziabad.


(iv)   If you are assessed to tax, then furnish your PAN, copy of

relevant years ITR, whether it was shown or not, copy of capital a/c,

balance sheet, P & L a/c as the case may be.

(v)    You are required to furnish the details within one week of

receipt of this letter. Please note that non-compliance of this letter may

attract the penal action as per the provision of the Income Tax Act,

1961. It is to be mentioned in the verification letter itself that non-

furnishing of information may constitute the reasons for initiating the

proceedings to tax these transaction in the hand of the assessee by

presumingthat these are not disclosed to Income Tax Department. The

assessee even after receiving the letter himself, did not tendered any

reply till date and till now. This is sufficient fact to establish that these

transaction/deposits are not disclosed in the regular return of income

of assessee.

Therefore, it is clear that amount of Rs. 63,27,996/- has not been

brought to tax by the assessee. Accordingly, I have reason to believe

that income to that tune of Rs. 63,27,996/ - has been escaped

assessment.
                               25
                  ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                        And Shri Ashok Kumar, Ghaziabad.


Accordingly notice u/s 148 is being issued for initiating the

proceeding of the I. T. Act, 1961."

7.          Ld. Counsel for assessee submitted that no

proceedings were pending before AO when AO issued the

letter of enquiry. The inquiry letter is not valid in eyes of

law. The assessee is not under obligation to respond to

this invalid and non est so-called letter of enquiry. The AO

merely in the absence of reply of the assessee formed the

opinion for reopening of the assessment. The deposit in the

bank account by itself would not give reasons to the AO to

believe income has escaped assessment. Mere deposit in

the bank account would not prima facie makes out a case

of reopening of the assessment. He has further submitted

that the AO in the reasons              recorded incorrect fact of

deposits of Rs. 63,27,996/ - despite the total deposits

were only to the tune of Rs. 41.15 lacs. This fact is

considered favourably by Ld. CIT(A) and his findings are in

para 5.3 of the appellate order. Therefore wrong facts are
                                26
                   ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                         And Shri Ashok Kumar, Ghaziabad.


recorded in reasons for reopening of assessment. Therefore

assumption of jurisdiction u/s 147 of I.T .Act is bad in law.

He has relied upon following orders :

1.       Order of ITAT Amritsar Bench in the case of Amrik

Singh vs. ITO 1591TD 329 (Amritsar) in which it was held

as under :

         "When the assessment proceedings u/s 147 are initiated

         on the fallacious assumption that the bank deposits

         constituted undisclosed income, over-looking the fact that

         the source of the deposits need not necessarily be the

         income of the assessee, the proceedings is neither

         countenanced, nor sustainable in law."


2.       Order of IT AT Delhi Bench in the case of Smt. Rajni

vs ITO and others in ITA No. 854/Del/2016 dated

6.11.2017 in which in para 12 it was held as under :-

     "12. With the assistance of the Ld. Representatives, I have
     [




     gone through the record carefully. Section 147 of the Act
                         27
            ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                  And Shri Ashok Kumar, Ghaziabad.


contemplates that `'if the AO has reason to believe that

any income chargeable to tax has escaped assessment for

any assessment year, he may, subject to the provisions of

section 148 to 153, assessee or re-assess such income ' A

perusal of this section would show that in order to harbor

a belief    that income has escaped assessment , the

Assessing Officer ought to have formed an opinion on the

basis of the material possessed by him exhibiting the facts that

income has escaped assessment. A perusal of the reasons

extracted above would indicate that the Ld. AO has basically not

made reference to any material possessed by him except the AIR

communicated to him. It is pertinent to observe that he has not

analysed the information in right perspective and he sought to

reopen by conceiving a fact that the assessee failed to respond to

the query raised about this investment. As noticed in the

submissions of Ld.Counsel for the assessee, 1 am of the view

that there was no proceedings pending before the AO when he

sought the clarification of the assessee vide alleged query notice
                          28
             ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                   And Shri Ashok Kumar, Ghaziabad.


dated 23rd January, 2012. The ITAT Amritsar Bench has dealt

with this issue elaborately and recorded a finding that under the

income tax Act, there is no such procedure to conduct an

enquiry for collecting the information without pendency of

assessment proceedings. If this reasoning is being excluded

from the copy of the reasons given by the AO, then, nothing will

remain with the AO except the information' transmitted by AIR

Wing. Apart from the above, it is to be seen that in the reasons

the AO has nowhere alleged escapement of income. The thrust

of the reasoning would show that he want to make an enquiry

about the investment. No doubt, for reopening of an assessment,

he has to just form a prima facie opinion and not to arrive at a

firm conclusion, but, the formation of a prima facie opinion

should also depict escapement of income. It is also pertinent to

observe that when all these pleas were raised before the first

appellate authority, then, the Ld. First appellate authority has not

dealt with a single proposition and rather dealt with the issue in

an altogether different manner whether notice u/s 148 was

served or not, copy of reasoning was provided or not, the
                              29
                 ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                       And Shri Ashok Kumar, Ghaziabad.


     procedure contemplated through the decision of the Hpn'ble

     Supreme Court in the case of GKN Driveshaft was followed or

     not. The Ld. CIT(A) has not addressed the contention of the

     assessee that reopening of assessment in itself is bad. because

     there is no nexus between reasons vis-a-vis formation of belief ''

     exhibiting the escapement of income. Taking into consideration

     all these aspects, I am of the view that the AO is not justified in

     reopening of the assessment afresh. I allow this ground, of

     appeal and quash the assessment. As far as other issues are

     concerned, since reopening of assessment has been held as bad

     aqd not. in accordance with the law, therefore, I deem it not

     necessary to deal with the other grounds of appeal as they have

     become infructuous. "


3)   Order of ITA Delhi Bench in the case of Raj Kumar

Dugar (HUF) vs. ITO 12 DTR 16 in which it was held as

under :-


     "Reason recorded by the AO that assessee had not filed IT

     return for asstt. year 1998-99 being based on incorrect
                        30
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.


facts because assessee had in fact filed IT return for the

said year, issuance of notice under section 148 and

consequent assessment could not be sustained; further,

assessment could not be reopened in the absence of any

fresh material to show that income has escaped

assessment and reopening for making fishing inquiry was

not valid. "


8.    On the other hand Ld. DR submitted that prima

facie case was made out for reopening of the assessment.

Therefore AO correctly reopened the assessment and

relied upon decision of the Hon'ble Supreme Court in the

case of Raymond Woollen Mills Ltd. 236 ITR 34.


9.    I have considered rival submissions. It is not in

dispute that assessee filed return of income prior to

issue of notice u/s 148 of the I.T. Act. The notice u/s

148 was issued on 16th March 2014. It is well settled law

that validity of the reassessment proceedings is to be
                        31
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.







determined on the basis of the reasons recorded by the

AO. The reasons are reproduced above in which AO

mentioned that as per AIR information it was found

that assessee deposited cash of Rs.63,27,996/- in his

bank accounts. However the assessee contended before

Ld. CIT(A) that the total aggregate deposits in bank

accounts were only 41.15 lacs and not Rs. 63,27,996/-.

The contention of the assessee was found correct by the

Ld. CIT(A). It is therefore clear that the AO while

recording the reasons for reopening of the assessment

recorded in correct facts in the reasons for reopening of

assessment. Therefore reopening of the assessment u/s

147 is clearly invalid and bad in law. I rely decision of

Hon'ble Punjab & Haryana High Court in the case of

CIT vs. Atlas Cycle Industries 180 ITR 319. Further the

AO after obtaining the AIR information wanted to

verify the same and issued a letter of enquiry to the

assessee. The AO thus did not apply in his
                        32
           ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                 And Shri Ashok Kumar, Ghaziabad.


independent mind to the information received from

AIR. Since no proceedings were pending before AO

when he issued the letter of enquiry to the assessee,

therefore such enquiry letter was not valid in eyes of

law. The assessee was not required to respond to this

invalid and non est letter of inquiry issued by the AO.

The AO in the absence of reply from the assessee

presumed that income to the extent of deposits had

escaped assessment. The deposit in the bank accounts

per se cannot be the income of assessee. It was mere

suspicion of the Assessing Officer based on incorrect

facts, that income chargeable to tax has escaped

assessment. According to Section 147 of the I.T. Act the

AO shall have reason to believe that any income

chargeable to tax has escaped assessment. Therefore,

the belief of the A.O. should be based upon some

specific and tangible material for the purpose of

reopening of the assessment. The course adopted by
                             33
                ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                      And Shri Ashok Kumar, Ghaziabad.


     the AO was wholly unjustified in recording the

     incorrect facts in the reasons for reopening of the

     assessment. The decision cited by the Ld. Counsel for

     assessee would clearly support the contention of the

     assessee that reopening of the assessment is bad in law.

     In this view of the matter I am of the view that AO has

     wrongly assumed jurisdiction u/s 147 of -the I.T. Act

     for the purpose of reopening of the assessment. I

     accordingly set aside the orders of the authorities

     below and quash the reopening of the assessment in

     the matter. Resultantly the addition made in the

     reassessment order would stand deleted and need not

     to be adjudicated on merit.

     10.   In the result appeal of assessee is allowed. "


8.   In this case the Assessing Officer after obtaining

the AIR information wanted to verify the same and

issued a letter of enquiry to the assessee. The Assessing
                            34
               ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                     And Shri Ashok Kumar, Ghaziabad.


Officer thus did not apply his independent mind to the

information received from AIR. Since no proceedings were

pending before the Assessing Officer when he issued a

letter of enquiry to the assessee, therefore, such enquiry

letter was not valid in eyes of law. Therefore, the

assessee was not required to respond to invalid letter of

enquiry issued by the Assessing Officer. The Assessing

Officer in the absence of reply of the assessee presumed

that cash deposited in the bank account has escaped

assessment.    The deposit in the bank account per se

cannot be income of the assessee. It is mere suspicion of

the Assessing based on incorrect fact that income

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 that 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 the
                                   35
                      ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                            And Shri Ashok Kumar, Ghaziabad.


       authority   below   and    quash       the   reopening       of    the

       assessment in the matter. Resultantly, the addition made

       in the reassessment would stand deleted."

6.3.        Considering the facts of the case in the light of

above decisions, it is clear that the A.O. in this case recorded

in the assessment order that as per information available on

record, assessee has made cash deposit of Rs.39 lakhs in his

bank account and on that basis, A.O. recorded reasons for

reopening of the assessment reproduced above. Further, in

the reasons, A.O. has recorded about information available

with him of cash deposit of Rs.10 lakhs only. Thus, there is a

contradiction in the statement recorded in the assessment

order as well as in the reasons above. The A.O. without

verifying the information has recorded the reasons for

reopening of the assessment. Thus, the A.O. has not applied

his independent mind to the information received in this

regard. The deposit in the bank account per se cannot be

income of the assessee. It is mere suspicion of the A.O. based
                                    36
                       ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                             And Shri Ashok Kumar, Ghaziabad.


on an incorrect fact that income chargeable to tax has

escaped assessment. In the similar circumstances, the ITAT,

Delhi Bench in the cases of Shri Bhajan Lal, Delhi vs. ITO,

Ward-2, Narnaul, Haryana in ITA.No.3984/Del./2017, Dated

20.09.2018, and Arvind Yadav, New Delhi vs. ITO, Ward-1(1),

New Delhi in ITA.No.1508/Del./2017, Dated 07.07.2017 did

not approve reopening of the assessment in the matter.

Following the above decisions, I am of the view that the A.O.

has wrongly assumed jurisdiction under section 147 of the

I.T. Act for the purpose of reopening of the assessment. I,

accordingly, set aside the Orders of the authorities below and

quash the reopening of the assessment in the matter.

Resultantly, the additions made in the re-assessment would

stand deleted.


7.        In     the   result,    ITA.No.2740/Del./2018              of   the

Assessee is allowed.
                                 37
                    ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                          And Shri Ashok Kumar, Ghaziabad.



ITA.No.1384/Del./2018 (Shri Ashok Kumar, Ghaziabad) :


8.        This appeal by Assessee has been directed against

the Order of the Ld. CIT(A)-2, Noida, Dated 23.01.2018, for

the A.Y. 2008-2009, challenging the reopening of the

assessment under section 147/148 of the I.T. Act, 1961, and

addition of Rs.27,49,400/- on account of cash deposited in

the bank account.


9.        In this case also, A.O. noted that PAN of assessee

is not available on record and information have been received

that an amount of Rs.48,24,200/- has been deposited in the

bank account of the assessee. Query letter was issued to the

assessee to explain the deposit in the bank account, but, no

compliance to the query letter was made. The A.O, therefore,

framed   the   re-assessment          and      made       addition       of

Rs.48,24,200/-. The assessee challenged the reopening of the

assessment and above addition before Ld. CIT(A). The Ld.
                                  38
                     ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                           And Shri Ashok Kumar, Ghaziabad.


CIT(A) confirmed the reopening of the assessment in the

matter, however, restricted the addition to Rs.27,49,400/-.


10.        After considering the rival submissions, I am of the

view that the issue is same as have been decided by me in

ITA.No.2740/Del./2018 in the case of Shri Inder Jeet, Delhi,

hereinabove. In this case, the A.O. recorded the following

reasons for reopening of the assessment.


Name &       Address     of   the Shri Ashok Kumar,
Assessee                          Vill. & P.O. Harsaon,
                                  Ghaziabad.
Assessment Year                   2008-09
PAN                               NA


      Reasons for issue of notice u/s. 148 of the I.T. Act, 1961 .

      16.03.2015 :     In this case, Non PAN AIR information has

      been received that the assessee has deposited cash of

      Rs.48,24,200/- in his S.B. A/c during the F.Y. 2007-08.

      Since, the PAN of the assesse is not known and also the

      return for the A.Y. 2008-09 is not available on record, to

      verify the transaction, query letters were issued to the
                                     39
                        ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                              And Shri Ashok Kumar, Ghaziabad.


        assessee to furnish' the particulars of PAN, ITR etc. and to

        explain the source of cash deposit in bank account.

        However, no response has been received from the assesse

        till date. Thus, the cash credited to the bank account of the

        assessee remains unexplained.


        Therefore, I have reason to believe that on account of

        failure on the part of the assessee to furnish his return of

        income/to disclose his correct and true income, the income

        chargeable to tax for the assessment year 2008-09 has

        escaped assessment within the meaning of section 147 of

        the I.T. Act, 1961.

                                                           Sd/-
                                                          ITO W-1(1), GZB."

10.1.        The issue is, therefore, covered by the Order of this

Bench in the case of Shri Inder Jeet, Delhi vs. ITO, Ward 2(5),

Gurgaon in ITA.No.2740/Del./2018 (supra). Following the

reasons for decision in the same, I set aside and quash the

reopening of the assessment under section 148 of the I.T. Act.

The addition stand deleted. Appeal of Assessee is allowed.
                                    40
                       ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                             And Shri Ashok Kumar, Ghaziabad.


11.        In   the    result,     ITA.No.1384/Del./2018              of    the

Assessee is allowed.


ITA.No.2647/Del./2018 (Shri Ashok Kumar, Govindpuram,

Ghaziabad, U.P.) :


12.        This appeal by Assessee has been directed against

the Order of the Ld. CIT(A), Ghaziabad, Dated 19.02.2018, for

the A.Y. 2008-2009, challenging the levy of penalty under

section 271(1)(c) of the I.T. Act, 1961.


13.        The A.O. levied the penalty on account of addition

made of unexplained cash deposit of Rs.48,24,000/-. Since

the re-assessment have been quashed and addition have been

deleted, therefore, penalty proceedings would not survive. I,

accordingly, set aside the Orders of the authorities below and

cancel the penalty.


14.        In   the    result,     ITA.No.2647/Del./2018              of    the

Assessee is allowed.
                                  41
                     ITA.No.2740, 1384 & 2647/Del./2018 Shri Inder Jeet, Delhi,
                                           And Shri Ashok Kumar, Ghaziabad.


15.        To sum-up, all the appeals of the Assessees are

Allowed.


            Order pronounced in the open Court.



                                               Sd/-
                                              (BHAVNESH SAINI)
                                             JUDICIAL MEMBER

Delhi, Dated 03rd December, 2018

VBP/-

Copy to
1.    The appellant
2.    The respondent
3.    CIT(A) concerned
4.    CIT concerned
5.    D.R. ITAT `SMC' Bench, Delhi
6.    Guard File.

                     // BY Order //



           Assistant Registrar : ITAT Delhi Benches :
                          Delhi.

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