TaxTMI 
TaxTMI 
2022 (7) TMI 1084
X X X X Extracts X X X X
X X X X Extracts X X X X
....e return already filed on 30.09.2010 may be treated as return filed in response to notice under section 148 of the Act. During the course of re-assessment proceedings, the Ld. AO confronted the assessee regarding the taxability of accommodation entry to the tune of Rs. 33,09,470/-. Rejecting the explanation given by the assessee, the Ld. AO completed the assessment on 30.12.2017 on total income of Rs. 66,43,520/- including therein addition of Rs. 33,09,470/- under section 68 of the Act being the bogus purchase made by him from M/s. Mayank Impex and Rs. 33,34,050/- being difference between closing balance of capital account as on March 31, 2009 and opening balance of capital account as on April 1, 2009 . 4. The assessee filed appeal before the Ld. CIT(A) challenging the aforesaid additions as also the validity of reassessment proceedings. The Ld. CIT(A) was not satisfied with the arguments advanced by the assessee before him. He, therefore, confirmed the impugned additions made by the Ld. AO as well as the reassessment proceedings initiated by him. 5. Aggrieved, the assessee is in appeal before the Tribunal. He has raised the following grounds of appeal:- "1. That the assumption....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t bringing any adverse material on record, without carrying out any further investigation to substantiate the allegation that the purchase is not genuine and without giving an opportunity to the assessee to confront Mayank Impex in relation to the transaction with the assessee, making of addition of Rs.33,09,470/- under Section 68 of the Act on account of bogus purchases in the hands of the assessee and sustained lay Id. CIT(Appeals) was unjustified and unwarranted on facts and in law. 8. That the addition of Rs.33,09,470/- made under Section 68 of the Act on account of bogus purchases in the hands of the assessee cannot be made merely because the purchases are not verifiable because as far as the assessee is concerned the purchase is duly supported by an invoice and payment by account payee cheque and such diamonds are utilized/sold to customers against payment by customer and against sale invoice and accordingly addition sustained by Id. CIT(Appeals) was unjustified and unwarranted on facts and in law. 9. That the addition of Rs.33,34,050/- on account of alleged difference between closing balance of capital account as on 31st March, 2009 of Rs.2,78,75,493.36/- and opening bal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tigation Wing. Copy of the order of the Tribunal dated 16.09.2021 in ITA No. 8670/Del/2019 was placed on record. 6.3 The Ld. AR relied on the following decisions in support of the proposition that reopening on the basis of information received from the Investigation Wing without independent application of mind is invalid:- i) Sfil Stock Broking Ltd. 325 ITR 285 (Del) ii) Sarthak Securities Co. (P) Ltd. (2009) 329 ITR 110 iii) Signature Hotels (P) Ltd. (2011) 338 ITR 51 (Del) iv) RMG Polyvinyl (I) Ltd. (2017) 83 taxmann. Com 348 (Del) v) Meenakshi Overseas Pvt. Ltd. (2017) (5) TMI 1428 (Del) vi) G&G Pharma India Ltd. ITA 545/2015 (Del) 6.4 The Ld. DR placed reliance on the order of the Ld. CIT(A). He submitted that the information received by the Ld. AO from Investigation Wing is the just and valid reason recorded for assuming jurisdiction to reopen the case of the assessee under section 147/148 of the Act. He however conceded that the facts of the case in the relevant AY are exactly similar to the facts in AY 2011-12 in ITA No. 8670/Del/2019 (supra). 7. We have careful thought to the rival submissions of the parties, peruse the orders of the Ld. AO/CIT(A) and the mat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the beneficiaries of such bogus accommodation entries. The complete details of the transactions between the entry provider and the assessee are as under:- From above it is clear that this issue could not be examined for the assessment year under consideration. Therefore, I have reasons to believe that the income of the assessee to the extent of Rs.14,54,400/- for A.Y.2008-09 has escaped assessment in terms of Section 147 of the I.T. Act 1961. Sd/- (G. Sathish) Assistant Commissioner of Income Tax Circle 30(1), New Delhi 8. I find identical issue had come up before the Tribunal in assessee's own case in the immediately preceding assessment year and the Tribunal vide ITA No.1914/Del/2016 order dated 08.11.2016 held the reassessment proceedings as not valid by observing as under :- "6. I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case it is noticed from the reasons recorded for reopening the assessment placed on page No.12 of the assessee's paper book that the reopening was done only on the basis of the information received from the Additional Director of Income Tax (Investiga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is in the nature of a post mortem exercise after the event of reopening of the assessment has taken place. While the CIT may have proceeded on the basis that the reopening of the assessment was valid, this does not satisfy the requirement of law that prior to the reopening of the assessment, the AO has to, applying his mind to the materials, conclude that he has reason to believe that income of the Assessee has escaped assessment. Unless that basic jurisdictional requirement is satisfied a post mortem exercise of analysing materials produced subsequent to the reopening will not rescue an inherently defective reopening order from invalidity." 8. In the present case, the reopening was done only on the basis of information received from Investigation Wing. Therefore, in view of the ratio laid down by the Hon'ble Jurisdictional High Court in the aforesaid referred to case, the reopening was not valid and the subsequent assessment framed was void ab initio. Accordingly, the same is set-aside. 9. In the result, the appeal of the assessee is allowed." 9. Since the facts and circumstances of the case are identical to the facts of the case decided by the Tribunal in assessee's....