TaxTMI 
TaxTMI 
2017 (4) TMI 390
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....e invited our attention to the copy of the reasons recorded, which is placed at PB-12 and submitted that from the reasons recorded itself, it can be inferred that the Assessing Officer had not applied his mind and the case of the assessee has been reopened on borrowed satisfaction. It was further submitted that this fact is further strengthened from the fact that the reasons recorded did not bear any date. It was submitted that has not been made any positive enquiry before coming to the reasons that the income chargeable to tax has escaped assessment and therefore, it was argued that the assessment itself is bad in law and needs to be quashed. Reliance in this regard was placed on the following case law : (i) CIT v. SFIL Stock Broking Ltd. reported in [2010] 325 ITR 285 (Delhi) ; (ii) Mohd. Yousuf Wani v. ITO (I. T. A. No. 372(Asr)/2009, dated June 6, 2011 relating to the assessment year 2004-05, decided by the Income-tax Appellate Tribunal, Amritsar Bench) ; and (iii) Karanvir Verma v. ITO (I. T. A. No. 352(Asr)/2014, dated May 18, 2016 relating to the assessment year 2005-06 decided by the Income-tax Appellate Tribunal, Amritsar Bench). 4. The learne....
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....the assessment year 2004-05 as the final payments were received by the assessee during the period relevant to the assessment year 2004-05. In view of the above, I have, therefore, reasons to believe that on account of the assessee's failure to disclose true and full particulars of his income in the return of income lied, income to the extent of Rs. 10,37,427 chargeable to tax has escaped assessment within the meaning of section 147 of the Income-tax Act, 1961 for the assessment year 2004-05. Issue notice under section 148 of the Income-tax Act, 1961. Notice under section 148 has been issued with the prior approval of the Additional Commissioner of Income-tax, Range-IV, Amritsar. Sd/- (T. L. Rajgotra) Income-tax Officer Ward 4(3), Amritsar." 6. From the above reasons recorded, we find that these reasons are undated, which itself prove that the Assessing Officer has not applied his mind. Secondly, nothing appears in the reasons recorded suggesting that the Assessing Officer had made any positive enquiry before coming to the conclusion that the income chargeable to tax has escaped assessment. The Assessing Officer has reopen....
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....ent year under reference. Accordingly notice under section 148 of the Income-tax Act, 1961 is being issued in this case. Sd/- Income-tax Officer Ward 3, Srinagar.' 7.1 At the first instance, we may point out that the so-called reasons recorded by the Assessing Officer are mere information received from the J & K Vigilance Organisation during August through the office of the Additional Commissioner of Income-tax, Srinagar Range, Srinagar. We may also point out that the so-called reasons recorded by the Assessing Officer are undated, which means that the Assessing has not applied his mind while recording the reasons. In the so-called reasons recorded, the Assessing Officer has also mentioned that "as per records the assessee has not filed his return of income for the assessment year and as such I have reason to believe that the income of Rs. 5,06,832 has escaped assessment for the assessment year under reference". The above observation noted by the Assessing Officer is wrong and contrary to the records. From the assessment order dated December 29, 2006 passed under section 143(3) of the Act, it is clear that the original return in this case was....
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....see. We find that the Supreme Court in Asst. CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500 (SC) made it absolutely clear that before an Assessing Officer issues a notice under section 148, thereby reopening the assessment under section 147 of the said Act, he must have formed a belief that income had escaped assessment and that there must be some basis for forming such a belief. The Supreme Court made it clear that the basis of such belief could be discerned from the material on record which was available with the Assessing Officer. However, the Supreme Court in Rajesh Jhaveri [2007] 291 ITR 500 did not say that it was not necessary for the Assessing Officer to form a "belief" and that the mere fact that there was some material on record was sufficient. In the present case, we find that the first sentence of the so-called reasons recorded by the Assessing Officer is mere information received from the Deputy Director of Income-tax (Investigation). The second sentence is a direction given by the very same Deputy Director of Income-tax (Investigation) to issue a notice under section 148 and the third sentence again comprises of a direction given by the Additi....
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....L Stock Broking Ltd. (supra) has quashed the assessment order. The aforesaid case law as relied on before us were relied upon before the learned Commissioner of Income-tax (Appeals) by the assessee, but the learned Commissioner of Income-tax (Appeals) has distinguished the case law by holding as under : "(i) CIT v. SFIL Stock Broking Ltd. [2010] 325 ITR 285 (Delhi) The abovesaid case was distinguished by the learned Commissioner of Income-tax (Appeals) by holding that in the present case the Assessing Officer had verified from the return of income filed by the assessee and had then come to the conclusion that income chargeable to tax had escaped assessment. However, from the reasons recorded, we do not find that the Assessing Officer had carried out any such exercise. Therefore, the learned Commissioner of Income-tax (Appeals) has wrongly distinguished the above case law. (ii) Mohd. Yousuf Wani v. ITO (I. T. A. No. 372/Asr/2009 Income- tax Appellate Tribunal-Amritsar Bench) (supra) The learned Commissioner of Income-tax (Appeals) has distinguished the above case by holding that the Assessing Officer did not examine the assessee under section 131 ....