TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 252
X X X X Extracts X X X X
X X X X Extracts X X X X
.... return for the year concerned and the same was pending disposal before the Assessing Officer as such the notice under section 148 was invalid. c. That the Assessing officer had not obtained the satisfaction u/s 151 of the Act which he must have obtained before the issue of the notice under section 148. d. That the notice under section 148 was issued after the expiry of the period of limitation laid down in that regard in section 149 of the Act. e. That the Assessing Officer had no information in his possession on the basis whereof he could have reason to believe that the income of the assessee had escaped assessment or had been under assessed. f. That on facts of the case, the provisions of section 147 were not attracted and could not be applied; And the learned Commissioner Of Income Tax appeal XXIV New Delhi has erred in dismissing all the reasoning and confirming the action of the assessing authority. 2. That assessing authority has grossly erred in law and facts of the case in passing order u/s 147 of the Act without giving the copy of the material in his possession for reopening the case and without giving the opportunity of cross examination of the donor an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d transaction seems to be bogus. In view of the above information I have reasons to believe that assessee had procured a gift of Rs. 5,00,000/- from Sh. Sanjay Mohan Agarwal, an accommodation entry provided by offering such sum in cash and receiving back the same in front of a gift. Such amount represents undisclosed income of the assessee, which has escaped assessment. Keeping in view the above facts, it is requested that necessary approval u/s 151(2) may kindly be accounted for initiating proceedings u/s 148 of the I.T. Act in order to book income which had escaped assessment. Sd/- INCOME TAX OFFICER WARD 25(2), NEW DELHI 29.03.2017 12. Whether the Commissioner/Board/ AddICIT is satisfied on the reasons Recorded By The ITO/AC/that it is fit case for the issue of a notice u/s 148. ' Yes. I am satisfied Sd/- Addl. CIT, Range 25 New Delhi." 3. In response to the notice u/s.148 issued on 29.03.2007, the assessee after filing the return of income has raised objection against initiation of proceedings on 10.09.2007 which has been disposed of by the AO vide separate order dated 19.09.2007. On merits, the ld. Assessing Officer has given a very categorical finding that;....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ason to believe' that income had escaped assessment and by following the decision of Hon'ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 (SC), rejected the said objection of the assessee. 7. Lastly, on the issue that Assessing Officer had no credible information in his possession and without giving any opportunity to cross-examination, reopening is not justified. 8. Ld. CIT (A) held that Assessing Officer not only had sufficient material on record but had credible information from the Investigation Wing relating to the assessee and based on application of mind Assessing Officer has reopened the assessment. In support, he relied upon the judgment of Hon'ble Delhi High Court in the case of AGR Investment Ltd. vs. Addl. CIT, (2011) 333 ITR 146 (Del). On the issue of cross-examination also he held that nowhere assessee had produced any material to prove that assessee has requested the Assessing Officer for cross-examination or asked for the reasons recorded. On merits, after detailed discussion and relying upon the various judgments he has confirmed the addition. However, he held that the said addition can be made u/s.69A. 9. Before us, ld.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns recorded, it is seen that inquiry and survey conducted by the Addl. CIT (Inv.), Ghaziabad in the case of donor Shri Sanjay Mohan Agarwal, it was found that he was involved in giving accommodation entries in the form of bogus gifts in lieu of cash received by the intending beneficiaries. On perusal of one such account with Vijaya Bank, New Delhi, it was found that out of various beneficiaries, assessee's name and PAN was appearing. However, it was also found that Shri Sanjay Mohan Agarwal had given away gift worth of Rs. 45.75 crore or various bank accounts to numerous persons who were strangers once such a specific information and details about the assessee including the cheque number which also corresponds with credit entries with the bank account of the assessee. Any prudent person on these material and information will definitely have 'reason to believe' that a gift received from an entry provider who himself has admitted that he is providing bogus accommodation entry as gift to various persons, then at that stage, Assessing Officer is neither required to provide any cross-examination of the donor nor establish the factum of escapement of income. What is required in terms of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....um of gift wherein the donor has stated that he is giving gift of Rs. 5 lac to the donor through account payee cheque issued from Vijaya Bank Account, Pansari Road, New Delhi in the donors bank account maintained with the same bank. The said gift has been stated by him to be given out of his own funds and he has also given his income tax particulars. The affidavit of the donor to this effect has also been given. The aforesaid evidences and explanation given by the assessee to prove the genuineness of the gift cannot be held to be sufficient in the wake of glaring material and information on record that, firstly, Shri Sanjay Mohan Agarwal was complete stranger to the assessee and what has been concocted that the donor and the father of the wife of Karta were close friends. However, no such averments have been made in the affidavit or the memorandum of gift. The donor has merely stated that gift is being given out of affection to the donee. The gift out of natural love and affection to stranger needs to be established and it cannot be said that any gift received from the stranger out of affection is on account of natural love infinity unless something is brought on record that what w....