TaxTMI 
TaxTMI 
2024 (4) TMI 886
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.... the Income Tax Act 1961. 3. On the facts and circumstances of the case and in law, the commissioner of Income Tax (Appeals) erred in confirming that addition of income on account of unexplained credit u/s 68 of the Income Tax of Rs. 15,000,000/-. 4. The orders of the Ld CIT (A) and the Ld AO are bad in law and on facts. 5. The Appellant craves leave to add, alter or amend aforesaid grounds of appeal." 3. The first challenge is in respect of reopening of assessment by the issue of notice under section 148 of Income-tax Act, 1961 (in short "Act"). Since this goes to the root of the matter, we decide to adjudicate it first. 4. Representatives of both the sides were heard at length. Case records carefully perused. Relevant documentary evidences brought on record duly considered in the light of Rule 18(6) of ITAT Rules. 5. Facts on record show that, the assessee electronically filed his return of income on 30.07.2011 declaring a total income of Rs..6,63,100/-. The return was processed under section 143(1) of the Act. 6. On the basis of the information received from Asst. DIT-(Investigation), Unit - 2(1), Kolkata, the Assessing Officer was informed....
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....dus operandi vide his letter dated 28.02.2018 by way of "Layer-I accounts', Layer-II Accounts [Part-A, Layer A/1, Layer-A/2, Layer-A/3], Part-B, Layer-B/1, Layer-B/2, Layer-B/3, Layer-B/4. [part C & E, Layer CE/1, Layer CE/2, Layer-CE/3 and Layer-CE/4], [Part-D, Layer-D/1 Layer-D/2, Layer-D/3]. It is further observed that the most of the Companies [in whose name accounts were opened] are in the list of shell Company declared by Government. The bank accounts are used for rotating the funds has been declared as shell company. 2.3 In view of the above facts and circumstances and in the light of detailed modus operandi explained by the Asst. DIT [Inv.], Unit-2(1), Kolkata, it is evident that several beneficiaries brought back unaccounted money into their books of accounts using banking channel after layering the funds through bank accounts of inexistence entity and shell company. The bank statements of the company mentioned I the report has been analysed and a "cash trail / money trail" tracing out several beneficiary has been prepared, wherein it is found that one beneficiary namely Shri Manish Rajnarain Goswamy has also received alleged funds. The details of alleged fund....
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.... the list of parties who are the beneficiaries of the transfer of funds is given but the name of the assessee is nowhere in the entire list of beneficiaries. There is a general remark "other beneficiaries as per Annexure A". The Assessing Officer has presumed that under the head "Other Beneficiaries' the name of the assessee must has been mentioned. It is pertinent to mention here that the assessee has shown advance against property from Wheelers Developers Pvt Ltd., at Rs..1.50 crores which is the bone of contention for the reopening of the assessment. 10. We have given a thoughtful consideration to the observations / findings of the Assessing Officer / Ld. CIT(A). We are of the considered opinion that the entire reopening is based on the assumption that assessee has been benefited by the impugned / alleged colorable transactions but without any backing of any demonstrative evidences to show that the assessee has purchased cheque from Wheelers Developers Pvt Ltd., by paying cash to it. We find that the entire process of reopening is based upon only and only the investigation report from ADIT (Investigation), Kolkata. We are of the considered view that the Assessing Officer has ....
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....hi High Court. Interestingly, the Assessing Officer issued notice under section 133(6) of the Act to Wheelers Developers Pvt Ltd., and the reply given by Wheelers Developers Pvt Ltd., read as under: - "This has reference to your letter NO ITO-16(1)(3)/reopen/2018-19 dated 18.06.2018 in the case of Shri Manish Rajnaraian Goswamy and our reply stand as under. 1. We are enclosing herewith a confirmation with Shri Manish Rajnaraian Goswamy for the period from 30.03.2011 to 11.06.2014 duly signed. 2. Bank statement reflecting the transaction made with Shri Manish Rajnaraian Goswamy. 3. As stated by you that we have deposited cash in bank to make the above transaction of Rs. 1,50,00,000.00 (One Crore Fifty lakhs) is incorrect. This can be easily verified with the bank statement enclosed herewith for that date. You will observe that we have received payment from Korp Securities Limited against sale of Shares and the said amount was paid to Shri Manish Rajnaraian Goswamy. 4. Copies of PL A/c and Balance sheet for the year ending 31.03.2011, 31.03.2012, 31.03.2013, 31.03.2014 & 31.03.2015 is enclosed herewith alongwith the ITR Acknowledgement." ....
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....nt and kindly deal with these before proceeding with the said assessment. 4. I also request you to give us opportunity to file further objections based on material provided by you. In case your goodself is going to rely on the evidences provided by Asst. DIT(lnv) Kolkata collected on Wheelers Developers Pvt Ltd, you are requested to kindly provide me all such evidences and statements taken during search /survey and also provide us an opportunity to cross examine concerned persons. In view of the above I request Your Honor to drop the reassessment proceedings and oblige." 16. Order disposing the objections raised by the assessee read as under: - "ORDER DISPOSING OFF THE OBJECTIONS RAISED ON THE RE-OPENING OF THE ASSESSMENT u/s. 148 OF THE I.T. ACT Kindly refer to the above wherein you have been submitted reply to this office letter dated 18/06/2018. 2. In your submission, you have stated that you are required the documents which are the basis of reopening of your assessment for the year under consideration and without that the objection cannot be filed without' proper examination of the same. 2.1 In this respect, this is t....
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....facts and circumstances of the case and in law, the Tribunal was justified in restoring the issue to the Assessing Officer after having quashed/ set aside the order dated 14th December, 2009 passed by the Assessing Officer without having disposed of the objections filed by the appellant to the reasons recorded in support of the re-opening Notice dated 28th March, 2008.?" 18. The Hon'ble High Court answered as under: - "8. We note that once the impugned order finds the Assessment Order is without jurisdiction as the law laid down by the Apex Court in GKN Driveshafts (supra) has not been followed, then there is no reason to restore the issue to the Assessing Officer to pass a further/fresh order. If this is permitted, it would give a licence to the Assessing Officer to pass orders on re-opening notice, without jurisdiction? (without compliance of the law in accordance with the procedure), yet the only consequence, would be that in appeal, it would be restored to the Assessing Officer for fresh adjudication after following the due procedure. This would lead to unnecessary harassment of the assessee by reviving stale/ old matters. 9. In fact, to ensure that re-open....