TaxTMI 
TaxTMI 
2026 (2) TMI 641
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....take the appeal of the assessee in ITA No. 90/DDN/2024 for Assessment Year 2015-16. ITA No. 90/DDN/2024 [Assessment Year 2015-16] 4. Brief facts of the case are that assessee was working in SIDCUL in the capacity of DGM and derived income from "Salary" and from "Other Sources" and filed his regular return of income u/s 139(1) of the Act, declaring total income of INR 2,96,090/- on 28.09.2015. A survey operation was conducted in the case of Shri Amit Sharma at 06, Shastri Nagar, Haridwar Road, Rishikesh and M/s. Shiva Electricals, Prop. Shri Amit Sharma, 3-New Friend Colony, Bye Pass Road, Dehradun and during the survey, certain loose papers were found and impounded. As per the impounded materials, it has been noticed that assessee has received payments of INR 1,55,00,000/- for the year under consideration. Thereafter, re-assessment proceedings u/s 147 were initiated after recording the reasons and obtaining the necessary approval from the competent authorities and notice u/s 148 of the Act was issued on 11.03.2020 to the assessee. In response, the assessee field his return of income of INR 2,96,090/- on 17.04.2020. Thereafter, notice u/s 143(2) and further notices u/s 142(1) ....
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.... 8. Without prejudice to the above, on the facts and circumstances of the case, the order of AO passed u/s 147 and affirmed by CIT(A) is void-ab-initio as in the view of non-obstante provision of section 153C, the AO ought to have invoked section 153C instead of section 147. 9. On the facts and circumstances of the case, Ld.CIT(A) has erred both in law as well as on facts in affirming the addition of Rs. 1,55,00,000/- made by the AO only on the basis of dumb documents and without bringing on record any direct evidence/incriminating material against the assessee. 10. On the facts and circumstances of the case Ld. CIT(A) while affirming the addition of Rs. 1,55,00,000/- made by the AO has failed to appreciate that statements/documents must be read in whole and not in piecemeal. 11. That appellant craves leave to add, alter, modify or to amend any ground of appeal before or at the time of hearing." 7. The Ground of appeal No.2 is not pressed hence, dismissed. 8. In respect of Grounds of appeal No. 3 to 6 raised by the assessee wherein the assessee has challenged the re-opening of the assessment u/s 148 of the Act, it is stated that sole basis for i....
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....urt in the case of PCIT vs Meenakshi Overseas 2017] 395 ITR 677(Del.) and of Hon'ble Calcutta High Court in the case of PCIT vs GRD Commodities Ltd. [2023] 149 taxmann.com 223 (Calcutta). 10. Ld.AR argued that that it is a well-settled law that the entries found noted in the loose paper /documents, cannot be made the sole basis for re-opening the assessment. For this, he placed reliance on the judgment of Hon'ble Supreme Court in the case of CBI vs V C Shukla [1998] 8 SCC 410 (SC) and Chuharmal v. CIT (1988) 172 ITR 250 (SC). 11. Ld.AR stated that ld. PCIT while granting the approval u/s 151 has held that the entries found noted in the loose paper No.184 and 186 found from the possession of Shri Amit Sharma related to the assessee and given his approval for re-opening the case of the assessee. However, while filing the report under Rule 9 before the Hon'ble Settlement Commission, the same PCIT categorically observed that loose paper No.184 and 186 pertained to Shri Rajesh Kumar MD. Therefore, while granting approval u/s 151 of the Act in the case of the assessee, ld. PCIT contradicted from his statement made before the Hon'ble Settlement Commission. 12. In the last, Ld.AR ....
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....e entry of INR 3 Lakhs at page 184 pertained to assessee involving two Assessment Years i.e. 2013-14 and 2015-16. Based on these entries, case of the assessee was reopened for both the Assessment Years. The claim of the assessee is that provisions of section 148 of the Act were invoked on the basis of borrowed satisfaction and no independent verification of fact was made. It is observed that AO has based his satisfaction on the entries found noted in loose papers No. LP 184 & 186 however, in the report filed before the Hon'ble Settlement Commission, the ld. PCOT stated that the entries in these pages pertained to Ranjan Rajesh Kumar who was MD of the company in which assessee was employed. It is thus, observed that PCIT while granting the approval, has taken a divergent stand from what was observed in the case of Ranjan Rajesh Kumar. The Co-ordinate Bench of the Tribunal in the case of Ranjan Rajesh Kumar in ITA No.78 & 79/DDN/2023 vide order dated 08.02.2024 after appreciating these facts has held that the approval granted by PCIT is mechanical approval. The relevant observations as contained in para 16 of the said order are reproduced as under:- 16. "In the present case,....
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....131(1A) of the Act on 11.08.2017 at the time of survey on oath and any reply to question No.97, he was asked to explain the nature of entries found noted at page 186 to which he replied that he does not know both such calculation. The relevant question and answer is reproduced herein below:- 17. Based on the entries found in the loose papers No. LP 184 &186, the AO recorded his presumptions that these pertained to the assessee. The Hon'ble Jurisdictional Delhi High Court in the case of CIT vs Anil Khandelwal [2015] (5) TMI 86/ 373 ITR 534 has held that the presumption u/s 132(4A) & 292C of the Act is available only in the case of the person from whose possession and control, the documents are found and it is not available in respect of the third party. The relevant head note read as under:- 2015 (5) TMI 86 - DELHI HIGH COURT Commissioner Of Income Tax Versus Anil Khandelwal No.-ITA 247/2015 & ITA 248/2015 Dated:- April 21, 2015 Addition under Section 69 - ITAT's confirmation of the CIT (A)'s order cancelling the addition - justification to reference to Section 132 (4A) and Section 292C - Held that:- It is quite evident that what materially persuaded the AO t....
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....ntive evidence. 19. In view of the above discussion, we find that the AO has recorded the satisfaction before re-opening the assessment on the basis of material supplied by Investigation Wing impounded from the control and possession of third person in whose case, survey was carried out and further the ld. PCIT has taken contrary view and at one place alleged the said entries related to some other person and in the case of assessee alleged as pertained to him. Thus by respectfully following the order of the coordinate bench in the case of Ranjan Rajesh Kumar (supra) in whose case, under identical circumstances, the hon'ble court has held the reopening as invalid, we hold that the re- of the assessment in the case of the assessee is bad in law and thus, the notice issued u/s 148 is invalid and consequent reassessment order passed u/s 147 of the Act is hereby, quashed. 20. Since we have allowed Grounds of appeal No.3 to 6 raised by the assessee, remaining Grounds of appeal raised by the assessee are not decided being academic in nature. 21. In the result, appeal of the assessee is allowed. ITA No.104/DDN/2024 [Assessment Year 2013-14] 22. As the facts in captioned appe....