MAHESHWARI ROLLER FLOUR MILLS PVT LTD,NEW DELHI vs. ITO WARD - 16(1), NEW DELHI

PER BHAVNESH SAINI, J.M.

This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-6, Delhi, Dated 29.03.2019, for the A.Y. 2009-2010, challenging the initiation of re-assessment proceedings under section

2 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 147/148 of the I.T. Act, 1961, addition of Rs.25 lakhs under section 68 of the I.T. Act, 1961, received from M/s. KDG Properties and Con (P) Ltd., and addition of Rs.45,000/- under section 69C of the I.T. Act, 1961 on account of unexplained expenditure.

3 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. was found that the said group has been providing accommodation entries to various persons and the assessee-company was also figured in the same list. The A.O, therefore, recorded reasons for reopening of the assessment and issued notice under section 148 of the I.T. Act, 1961. The A.O. reproduced the reasons at pages 2 to 8 of the assessment order and after considering the objections of the assessee company against reopening of the assessment, rejected the objections of the assessee company and made the addition of Rs.25 lakhs under section 68 of the I.T. Act, 1961 on account of unexplained share capital and further made addition of Rs.45,000/- on account of unexplained expenditure for obtaining accommodation entry. The Ld. CIT(A), however, dismissed the appeal of assessee.

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“Form for recording the reasons for initiation of proceedings u/s.148 of Income Tax Act, 1961. M/s. Maheshwari Roller Flour Mills Pvt. Ltd., B-11, 1. Name of Assessee W.H.S. Kritinagar, New Delhi-110015 2. Permanent Account Number AAACM1075C 3. Status Company 4. District/Circle/Range Ward-16(1) Assessment year in respect of 5. which it is proposed to issue 2009-10 notice u/s.148. The quantum of income which Rs.25,00,000/- 6. has escaped assessment. Whether the provisions of 7. sec.147(a) or 147(b) are 147(b) applicable or both the sections are applicable Whether the assessment is 8. proposed to be made for first YES. time. If the reply is in the affirmative, please state : (a) Whether any voluntary return had already been filed, and 30.09.2009 (b) If so, the date of filing the said return. If the answer to item 8 is in the 9. negative, please state NA (a) The income originally assessed; (b) Whether it is a case of under assessment, assessment at too low a rate, assessment which has been made the subject of excessive relief or allowing of excessive loss or depreciation;

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Whether the provisions of Sec.150(1) are applying. If the reply is in the affirmative the NA 10. relevant facts may be stated against item No.11 and it may also be brought out that the provision of section 150(2) would not stand in the way of initiating proceeding u/s.147. Reasons of the belief that As per Annexure-A 11. income has escaped assessment. I have carefully examined the proposal of the Assessing Officer and reasons recorded by the Assessing Officer for initiating action u/s.147 of the Act. It is seen that in this case information was Whether the Addl. CIT is received from Investigation 12. Wing along with satisfied on the reasons incriminating documents seized during the course of recorded by the ITO that it is a search in case of Sh. S.K. Jain Group which provided fit case for issue of a notice accommodation entry to the assessee in lieu of the cash under section 148. payments. Subsequent to the information the Assessing Officer has made its own investigation by examining the information received from Investigation Wing, return of income, copies of relevant seized document, findings of the Assessing Officer and CIT(A) in case of Shri S.K. Jain. After making further investigation, the Assessing Officer has formed his belief that income amounting to atleast Rs.25,00,000/- has escaped assessment. After considering aforesaid

6 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. material I am satisfied that this is fit case for issue of notice u/s.148 of the Act. Sd/- Raman Kant Garg, Addl. Commissioner of Income Tax, Range-16, New Delhi. For the reasons as Whether the Pr. CIT is recorded by me in satisfied on the reasons 13. Annexure-I [copy attached recorded by the ITO that it is a fit case for the issue of a with Memo], I am notice under section 148. satisfied that it is a fit case for issue of notice u/s.148 of the Act. Approval u/s.151 is granted.

Sd/- Sanjay Kumar Mishra Pr. Commissioner of Income Tax-06, New Delhi.”

4.1. He has submitted that A.O. in para-11 has attached Annexure-A which are reasons for reopening of the assessment which is reproduced at pages 2 to 8 of the assessment order, copy of which is also filed at PB-1 to 13. The same reads as under :

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4.2. Learned Counsel for the Assessee referring to the aforesaid Form for reopening of the assessment and reasons, submitted that initiation under section 147 of the I.T. Act have been done by mentioning the wrong Section

14 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 147(b) of the I.T. Act which is deleted from the Income Tax Act w.e.f. 01.04.1989, therefore, reopening is done under non-existent Section in a mechanical manner without application of mind. He has also referred to PB 40 to 79 which is the report of the DDIT (Inv.) Dated 12.03.2013 and report of DDIT (Inv.) to CIT, New Delhi which is referred to in the reasons in which the A.O. has wrongly mentioned receipt of share capital/premium/loan and has also stated that these amounts are required to be taxed in the hands of these companies by initiating action under section 148 of the I.T. Act, 1961. Similarly, it is suggested that the amounts shall have to be brought to tax by initiating action under section 147/148 read with section 143(3) of the I.T. Act, 1961 for relevant assessment years in the case of abovementioned beneficiary companies. Learned Counsel for the Assessee submitted that these clearly show that A.O. has reopened the assessment on the basis of the directions and action suggested by DDIT/DIT (Inv.), therefore, initiation of reopening of the assessment have been done on the basis of borrowed satisfaction. The A.O. did not carry-

15 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. out any independent enquiry and even did not verify the correctness of the information so received. The A.O. acted on the information mechanically without application of mind and initiated the re-assessment proceedings. he has further submitted that Rs.25 lakhs were received on 06.01.2009 from M/s. KDG Properties and Con Private Ltd., through banking channel which was returned on 30.03.2009 in assessment year under appeal itself through banking channel because no shares were issued. He has referred to copies of the bank statements at pages 26 to 29 of the PB. He has, therefore, submitted that assessee was never beneficiary of the impugned amount. A.O. under mistaken belief initiated the re-assessment proceedings that assessee is beneficiary of Rs.25 lakhs which fact is incorrect. Thus, even the Senior Authorities have not applied their mind to the facts of the case and approved the reopening of the assessment under section 151 under wrong section as well as under mistaken belief of escapement of any income. Learned Counsel for the Assessee in their written synopsis relied upon several Judgments in support

16 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. of the contention. Further he has submitted that the issue is squarely covered by the Order of ITAT, Delhi Bench in the case of VRC Township Pvt. Ltd., Delhi vs., ITO, Ward-17(1), New Delhi Dated 14.10.2020 in ITA.No.1503/Del./2017, in which several decisions of different High Courts and jurisdictional High Court have been relied upon for quashing the re-assessment proceedings on identical issue. He has, therefore, submitted that the issue is squarely covered by the decision of Hon’ble Tribunal in the case of VRC Township Pvt. Ltd., (supra).

17 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Act, 1961 has mentioned that “reopening have been done under section 147(b) of the I.T. Act as is reproduced above.” Further, such Section under section 147(b) of the I.T. Act have already been omitted from the Income Tax Act w.e.f. 01.04.1989. Learned Counsel for the Assessee further placed on record report of DIT (Inv.) Dated 12.03.2013 which is referred to in the reasons for reopening of the assessment in which A.O. has clearly suggested that the impugned amount is required to be taxed by initiating the proceedings under sections 147/148 of the I.T. Act, 1961. Thus, it was a borrowed satisfaction without applying independent mind by the A.O. to the relevant provision of Law and to the facts of the case. In the reasons also it is mentioned that assessee has received share capital/loan which fact is also incorrect. It is also a fact that assessee just after receipt of the amount in question has returned the amount in question because no shares have been issued in assessment year under appeal itself. Thus, assessee was not a beneficiary of any amount. Thus, the A.O. has mentioned wrong Section, wrong facts in the reasons for reopening of

18 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. the assessment and has acted in a mechanical manner without application of mind. Similarly, the Senior Authorities while granting sanction under section 151 of the I.T. Act have not taken care that A.O. has mentioned wrong Section and wrong facts in the reasons for reopening of the assessment. An identical issue have been examined by ITAT, Delhi Bench in the case of VRC Township Pvt. Ltd., Delhi (supra) in which several decisions of High Court and Tribunal have been referred to on identical issue and reopening of the assessment have been quashed. The Order is reproduced as under :

“IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES “G” : DELHI

BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER

ITA.No.1503/Del./2017 Assessment Year 2007-2008

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VRC Township Pvt. Ltd., Plot No.16, Rohtak Road, The Income Tax Officer, Paschim Vihar Ext. Paschim [vs. Ward – 17 (1), Vihar, Delhi. New Delhi. PIN – 110 063. PAN AACCV1750F (Appellant) (Respondent)

For Assessee : Shri Suresh K. Gupta, C.A. For Revenue : Ms. Shalini Verma, Sr. D.R.

Date of Hearing : 13.10.2020 Date of Pronouncement : 14.10.2020

ORDER

PER BHAVNESH SAINI, J.M.

This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-9, New Delhi, Dated 28.02.2015, for the A.Y. 2007-2008.

20 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 2. We have heard the Learned Representative of both the parties through video conferencing and perused the material available on record.

21 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 3.1. The assessee challenged the reopening of the assessment as well as addition on merit before the Ld. CIT(A), however, the Ld. CIT(A) dismissed the appeal of assessee.

4.1. Learned Counsel for the Assessee referred to page Nos.14 and 15 of the PB which are reasons recorded for reopening of the assessment. He has submitted that in the reasons the A.O. has mentioned that Section 147(b) of the I.T Act is applicable in the present case for reopening of the assessment which does not exist in the statute w.e.f. 01.04.1989. He has submitted that Column Nos.8 and 9 of the same is also in ‘Blank’ and it did not say whether assessee has filed any return voluntarily or what is the date

22 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. of filing of the return and whether assessee is assessed. Therefore, A.O. was not having anything with him and as such it was non-application of mind on the part of the A.O. to record reasons for reopening of the assessment. He has also submitted that the Addl. CIT, Range-12 has also not verified the fact and granted sanction under section 151 in most mechanical manner and that too without application of mind. He has relied upon Judgment of the Hon’ble Bombay High Court in the case of Kalpana Shantilal Haria vs., ACIT [2017] 100 CCH 165 (Bom.) (HC) on the proposition that “if wrong Section is mentioned in the reasons i.e., 147(b) of the I.T. Act, it would invalidate the re-assessment proceedings.” He has submitted that same Judgment have been followed by ITAT G-Bench, New Delhi in the case of Shree Balkishan Agarwal Glass Industries Ltd., Delhi vs., DCIT, Circle-8(1), New Delhi in ITA.No.5768/ Del./2016, Dated 21.09.2020 and reopening was held to be invalid. He has also relied upon Order of ITAT, Delhi A-Bench in the case of M/s. Behat Holdings Ltd., Delhi vs., ITO, Ward-4(3), New Delhi in ITA.No.8066/Del./2019, Dated 15.01.2020 in which on identical issue the reopening

23 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. of the assessment have been quashed holding that approval by Pr. CIT is invalid.

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26 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 6.1. The above recording of reasons for initiation of re- assessment proceedings clearly show that in para 7 A.O. has mentioned Section 147(b) of the I.T. Act is applicable for reopening of the assessment, though such Section does not exist in the statute on the day of recording of the reasons for reopening of the assessment. Column Nos.8 and 9 above are ‘Blank’ and did not provide any details. It did not say if assessee has filed any return earlier and whether assessee was assessed to tax prior to recording of the reasons, though the fact remain that assessee filed return of income voluntarily for the assessment year under appeal on 31.10.2007 through e-filing and such record was available with the A.O, therefore, non-mentioning of the correct fact would lead to the conclusion that no material was available before A.O. to come to the conclusion that there is escapement of income based on the facts. Similarly, the Addl. CIT, without pointing-out the mistake and error in the reasons recorded above, in a most mechanical manner granted sanction to the reopening of the assessment. It is a settled principle of Law that sanction granted by the higher authority for issuing of

27 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. reopening notice has to be on due application of mind. It cannot be a mechanical approval without examining the proposal sent by the A.O. It appears from the reasons recorded above that the A.O. as well as Addl. CIT have not applied their mind and by mentioning wrong Section i.e., 147(b) of the I.T. Act came to the conclusion that there is escapement of income under section 147(b) of the I.T. Act which no longer exist in the statute. The Learned Addl. CIT instead of pointing-out such glaring mistake in the reasons and even finding two Columns ‘Blank’ in the reasons granted approval, even without mentioning how he was satisfied with the reasons for reopening of the assessment in the matter. Such issue have been examined by the Hon’ble Bombay High Court in the case of Kalpana Shantilal Haria vs., ACIT (supra) in which in Paras 5 to 8 it was held as under :

28 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. the notice has been issued under Section 143(b) of the Act. The Joint Commissioner of Income Tax has while granting the sanction has recorded the word "satisfied".

29 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. is a curable defect under section 292B of the Act. Therefore, the impugned notice cannot be held to be bad for mere incorrect mentioning of section on account of the mistake.

30 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. that if the Joint Commissioner of Income Tax would have applied his mind to the application made by the Assessing Officer, then the very first thing which would arise is the basis of the notice, as the provision of law on which it is based is no longer in the statute. Non pointing out the mistake / error by the Joint Commissioner of Income Tax on the part of the Assessing Officer is prima facie evidence of non-application of mind on the part of the sanctioning authority while granting the sanction.”

6.2. The ITAT Delhi G-Bench, New Delhi in the case of Shree Balkishan Agarwal Glass Industries Ltd., Delhi vs., DCIT, Circle-8(1), New Delhi (supra) following the Order of ITAT Delhi Bench in the case of DCIT vs., M/s. KLA Foods (India) Ltd., and Others, quashed the reopening of the assessment holding that recording reasons are based on wrong facts and approval was given in a mechanical manner, therefore, reopening of the assessment is held to be invalid.

31 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. The findings of the Tribunal in paras 23 to 28 is reproduced as under :

“23. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find, the AO, in the instant case, based on the report of the Investigation Wing that the assessee has received accommodation entries from Shri Surendra Kumar Jain and Virendra Kumar Jain controlled/managed companies, reopened the assessment by recording the following reasons:-

“ANNEXURE- ‘A’ M/s Shri Balkishan Agarwal Glass Industries Ltd. J-4-126-B, D.D.A. Flats Kalka Ji, New Delhi-110019 Assessment Year; 2005-06 Reasons for belief that income has escaped assessment; Enquiries were conducted by the Investigation Wing of the Dept in the case of Shri Surendra Kumar Jain Group. During the course of post search investigation and preparation of appraisal report it has been evidently established that SH. S.K, Jain and his brother Sh. Virendra Jain are known entry providers and are in the business of providing accommodation entries to various beneficiary companies/entities/persons through cheques through a number of paper & dummy companies in lieu of cash.

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These dummy companies are totally managed and controlled by Sh. Surendra Kumar Jain and his brother Sh. Virendra Jain.

The company M/s Shri Balkishan Agarwal Glass industries Ltd. has also received accommodation entry from Sh. S. K. Jain during the F.Y.2004-05. Details of cheque/pay orders issued in the name of the assessee are reproduced below:-

Bank Cheq Th Anne Page Book Cheque/ ue ro xure No, From TO Bank Amount Date RTGS Date ug No. h Shri Balkishan 11- Ne A- 22 PIO No. AVAIL Agarwal Glass Industries ABN Nov- 500000 er 148 947828 Ltd. 04 aj Shri Balkishan Agarwal 11- Ne A- 22 Glass Industries Ltd, PIO No. AVAIL ABN Nov- 500000 er 148 947829 04 aj Shri Balkishan Agarwal 11- Ne A- 23 Glass Industries Ltd. PIO No. AVAIL ABN Nov- 500000 er 148 947830 04 aj Shri Balkishan Agarwal 11- Ne A- 23 Glass Industries Ltd. PIO No. GRAPH ABN Nov- 500000 er 148' 947827 04 aj Shri Balkishan 11- Ne A- 23 PIO No! Agarwal Glass Industries GRAPH ABN Nov- 500000 er 148 947826 Ltd. 04 aj

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24- Ch A- 27 PIO No. GRAPH ABN Nov- 500000 aw 148 974556 Shri Balkishan Agarwal Glass Industries Ltd. 04 la SMART Shri Balkishan Agarwal 25- No Ne A- 28 Glass Industries Ltd. v- 04 PIO No. EST ABN 500000 er 148 974425 aj Shri Balkishan 25- No Ne A- 28 SMART v- 04 PIO No. Agarwal Glass industries ABN 500.000 er 148, 974426 EST Ltd. aj For Shri Balkishan Agrav Glass industries Shri Balkishan Agarwal Glass Industries 25- Ne A- 28 SMART PIONo. Ltd.' ABN Nov- 500000 er 148 EST 974427 04 aj Shri Balkishan Agarwal Glass industries 20- He A 12 LOVEL PJONo, Ltd. ABN Dec- 500000 er 149 Y 17.8048 04 aj Shri Balkishan Agarwal Glass Industries 28- Ne A- 18 LOVEL Ltd. ABN Dec- 500000 er 149 Y 04 aj 5500000

The escapement of income has been clearly on account of failure on the part of the assessee to truly and fully disclose all the material fact necessary for assessment. Thus it is a fit case for initiation of proceedings u/s 148 of I.T.Act, 1961.

34 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Therefore, I have reason to believe that an income of Rs,55,00,0QQ/- lias escaped assessment within the meaning of section 147 of the Income Tax Act 1961.

No assessment u/s 143(3) has been done earlier. The assessment record is being submitted for kind perusal and approval of the Addl. Commissioner of Income-tax, Range-8, New Delhi according to section 151(1) of the IT Act, 1961 for issuance of notice u/s 148 of the IT Act.

Sd/- (Nishtha Tiwari) Dy. Commissioner of Income Tax Circle-8(1), New Delhi”

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37 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. fit case for issue of notice under section 148.” The Hon’ble Bombay High Court in the case of Kalpana Shantilal vs ACIT 100 CCH 0165 has held that sanction granted by higher authority for issuing of reopening notice had to be on due application of mind and it could not be mechanical approval without examining proposal sent by AO. The Hon’ble Delhi High Court in the case of Yum Restaurants Ltd. vs Dy. Director of Income Tax 99 CCH 232 has held that where authorities appear to have concurred with reasons for reopening assessment without applying their mind, reopening of assessment would be invalid. The Hon’ble Bombay High Court in the case of Ankita A. Choksey vs. Income Tax Officer And Others (2019) 411 ITR 207 (Bom) has held that condition precedent for issue of notice for reassessment is that the reasons to believe that income has escaped assessment must be based on correct facts. Notice based on wrong facts is without jurisdiction and has to be quashed. The Delhi Bench of the Tribunal in the case of DCIT vs. M/s KLA Foods (India) Ltd. and Others, vide ITA No.2846/Del/2015, order dated 8th April 2019, has held that condition precedent for issue of notice for reassessment is that reason to believe that income has escaped assessment must be based on correct facts. Notice based on wrong facts is without jurisdiction and is to

38 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. be quashed. The Hon’ble Delhi High Court in the case of PCIT vs. M/s SNG Developers Limited, 404 ITR 312, has held that condition precedent for issue of notice for reassessment is that the reason to believe that income has escaped assessment must be based on correct facts. Notice based on wrong facts is without jurisdiction and has to be quashed. The above decision of the Hon’ble High Court was challenged by the Revenue before the apex court and the apex court dismissed the SLP vide SLP No.42379/2007, order dated 9th February 2018. Since, in the instant case, although the assessee has filed return of income which was processed u/section 143(1), however, the AO proceeded to reopen the assessment by mentioning that no voluntary return has been filed by the assessee and, thus, proceeded to reopen the assessment on wrong appreciation of facts on record.

39 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. there must be a live link with such material for the formation of the belief. Mearly using the expression ‘failure on the part of the assessee to disclose fully and truly all material facts’ is not enough. The reasons must specify as to what is the nature of default or failure on the part of the assessee. Similarly The Hon’ble Bombay High Court in the case of Anand Developers vs. ACIT, vide Writ Petition No. 17/2020, order dated 18th February, 2020 has held that a mere bald assertion by the AO that the assessee has not disclosed fully and truly all material facts is not sufficient. The AO has to give details as to which fact or the material was not disclosed by the assessee leading to its income escaping assessment otherwise the reopening is not valid.

40 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. the assessee succeeds on this preliminary legal ground, the other legal grounds as well as the grounds on merit, in our opinion, do not require adjudication being academic in nature.

6.3. The ITAT Delhi A-Bench in the case of M/s. Behat Holdings Ltd., Delhi vs., ITO, Ward-4(3), New Delhi (supra) examining the issue of 147 based on non-application of mind and that sanction have been granted by the Pr. CIT without recording reasons quashed the reopening of the assessment. The findings of the Tribunal in paras 5 and 6 are reproduced as under :

“5. We have considered the rival submission and perused the material on record. It is well settled Law that validity of re-assessment proceedings shall have to be determined with reference to the reasons recorded for reopening of the assessment. Learned Counsel for the Assessee filed copy of the reasons recorded for reopening of the assessment at pages 16 to 22 of PB. The same reads as under:

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48 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 5.1. The reasons are un-dated. The A.O. in the assessment order has reproduced the same reasons without application of his mind to the relevant material and thereafter by referring to notice under section 133(6) and non-production of the Directors of the Investor Companies made the addition against the assessee. The A.O. in the reasons has mentioned that information was forwarded by Serious Fraud Investigation Office, Delhi which were received through Pr. CIT vide Letter Dated 05.01.2017. The A.O. has also referred to such report based on search and seizure in the case of third parties. The assessee made a request to the A.O. to supply complete copy of the reasons along with Annexures and Report of SFIO Dated 05.01.2017 and approval granted by Pr. CIT. The A.O, however intimated that since SFIO report is confidential, therefore, same cannot be provided to the assessee. Thus, the complete Annexures to the reasons were not provided to the assessee and A.O. has also failed to provide copy of the report dated 05.01.2017 to the assessee which is the basis for reopening of the assessment. Assessee cannot be given surprise to file objections without providing

49 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. all the relevant material. The report Dated 05.01.2017 is the basis for reopening of the assessment and since it is not confronted and provided to assessee, the assessee may not be able to file proper objections to the reopening of the assessment. Thus, the direction given in the case of SABH Infrastructure Ltd., vs., ACIT (supra), have not been applied because it is the duty of the A.O. to provide all the documents and reports which are part of the reasons to the assessee before taking steps into the matter. Further the Addl. CIT while granting or forwarding copy of the reasons to the Pr. CIT for his approval did not mention any fact in the proforma which is blank and no remarks have been mentioned by him despite his signature appeared thereon. The Pr. CIT while granting sanction/approval to reasons recorded for reopening of the assessment has simply mentioned “Yes, I am satisfied”. Such type of approval was not found valid in many cases. The ITAT Delhi C-Bench in the case of M/s. Ganesh Ganga Investments Pvt. Ltd., Delhi vs., ITO, Ward-10(1), New Delhi in ITA.No.1579/Del./2019 for the A.Y. 2010-2011 vide Order Dated 07.11.2019 quashed the reopening of the

50 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. assessment in the similar circumstances. The entire order is reproduced as under :

“IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES “C”: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA.No.1579/Del./2019 Assessment Year 2010-2011 M/s. Ganesh Ganga The Income Tax Officer, Investments Pvt. Ltd., Ward – 10 (1), Room A-52, Top Floor, Street vs., No.206A, C.R. Building, I.P. No.1, Gurunanakpura, Estate, New Delhi. Laxmi Nagar, Delhi–110 092. PIN – 110 002. PAN AAACG2710J (Appellant) (Respondent)

Shri Raj Kumar, C.A. And For Assessee : Shri Rajeev Ahuja, Advocate Shri Sumit Goel, C.A. For Revenue : Ms. Parmit M. Biswas, CIT-DR

Date of Hearing : 10.10.2019 Date of Pronouncement : 07.11.2019

ORDER

PER BHAVNESH SAINI, J.M.

51 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-4, New Delhi, Dated 26.12.2018, for the A.Y. 2010-2011.

2.1. An information was received from the O/o. CIT, Central-2, New Delhi, vide letter Dated 14.02.2014 mentioning therein that a search/survey operation under section 132/133A of the Income Tax Act, 1961 was conducted by the Investigation Wing at the business and residential premises of Shri Himanshu Verma and his Group on 29.03.2012 wherein after intensive and extensive inquiry and examination of documents seized during the course of search, it has been gathered that the said persons are involved in providing accommodation entries to the persons who were named in the report. During the course of inquiry

52 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. made by the Investigation Wing, it also came to the notice that Shri Himanshu Verma was engaged in the business of providing accommodation entries through cheques/PO/DD in lieu of cash to large number of beneficiary companies through various paper and dummy companies floated and controlled by him. The cash received from the parties for providing accommodation entries was first deposited in the account of these dummy firms/companies in the guise of cash received against the bogus sales duly shown in the books of account. On the basis of the material available on record, the A.O. after recording reasons for reopening of the assessment, issued notice under section 148 to the assessee on 31.03.2017 which was served upon the assessee. The assessee objected to the reopening of the assessment and requested to provide copy of the approval of Competent Authority under section 151 of the I.T. Act, 1961. The Assessee also contended that whatever material was collected at the back of the assessee was not confronted and requested to supply statement of Shri Himanshu Verma, report and data complied / received from Investigation Wing,

53 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. report and data complied/received by ITO, Ward-10(1), New Delhi, diaries and registers considered as incriminating material seized from Shri Himanshu Verma and any other documents which Department wanted to rely. It was further submitted that proceedings under section 147/148 of the I.T. Act, cannot be invoked for making inquiry or verification purposes. The assessee denied receipt of any accommodation entry from any such person. The A.O, however, rejected the objections of the assessee and proceeded to make assessment in the matter. The A.O. noted that in assessment year under appeal, assessee has received Rs.11,05,00,000/- on account of share capital and share premium from 38 parties as noticed during the course of assessment proceedings. The summary of the same is reproduced in the assessment order. The assessee was asked to file complete postal address, PAN and other details of these 38 parties. The A.O. also issued notice under section 133(6) to all 38 share subscriber companies and asked for the details from them. The A.O. received replies from 26 companies. In 06 cases, although notice issued under section 133(6) of the I.T.

54 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Act were issued as per new name as well as old name of the company, but, the same were returned back un-served by the Postal Authorities. In the remaining 06 cases, no replies have been received. The A.O. noted that replies received from 26 parties under section 133(6) have been analysed and these companies furnished copy of the acknowledgment of ITR, balance sheet as on 31.03.2010, P & L A/c, copy of the bank statement. The A.O. however, did not accept the replies filed by the 26 investor companies on the reasons that replies have been received in bunch for similar style of envelopes and posted from three post offices. The A.O. also noted that none of the parties explained as to why high premium was paid and parties have not explained source of the investment. The A.O. also noted that 26 parties filed copy of the ITR, balance sheet, P & L A/c and bank statement, but, it shows that their income shown is very meagre in the return of income. The assessee was asked to produce the persons/Principal Officers of these entities for verification. However, assessee did not produce the same. The A.O. also analysed the statement of Shri Himanshu Verma through

55 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. whom amount have been received and the A.O. ultimately rejected the explanation of assessee on genuine share application money received from 38 parties and made addition of Rs.11.05 crores. The A.O. further noted that assessee has paid commission in cash for arranging these entries, on which, addition was made of Rs.22,10,000/- i.e., @ 2% of the amount in question which was also added to the returned income.

56 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Investigation Wing report without applying the mind. No right of cross-examination have been provided to the assessee to the statement of Shri Himanshu Verma and others. The assessee relied upon the following decisions.

3.1. In the case of Pr. CIT vs., RMG Polyvinyl (I) Ltd., 396 ITR 5 (Del.) the Hon’ble Delhi High Court held as under:

"In the present case too, the information received from the Inv. Wing cannot be said to be tangible material per se without a further enquiry being undertaken by the learned assessing officer"

[[3.2. In the case of Pr. CIT vs., Meenakshi Overseas (P) Ltd., 395 ITR 677 (Del.), the Hon’ble Delhi High Court held as under :

"Reassessment notice condition precedent recording of reasons to believe that income has escaped assessment mere reproduction of investigation report in reasons recorded absence of link between tangible material and formation of ceding illegal Income Tax Act, 1961, Sec.147, 148"

57 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 3.3. In the case of Pr. CIT vs., G And G Pharma India Ltd., [2016] 384 ITR 147 (Del.), the Hon’ble Delhi High Court held as under :

“Reassessment condition precedent application of mind by assessing officer to materials prior to forming reason to believe income has escaped assessment - No independent application of mind to information received from Directorate of Investigation and no prima facie opinion formed- reassessment order invalid”.

3.4. In the case of Sarthak Securities Co. (P) Ltd., 329 ITR 110 (Del.), the Hon’ble Delhi High Court held as under :

“No independent application of mind by the Assessing officer but acting under information from Inv. Wing - Notice U/s. 147 to be quashed”.

3.5. The assessee also submitted that assessment is barred by time. The assessee further submitted that approval under section 151 have been granted in a most mechanical manner without applying independent mind by the Pr.

58 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Commissioner of Income Tax. He has submitted that Pr. Commissioner of Income Tax has recorded in the approval as under :

“Form for recording the reasons for initiating proceedings u/s 147 and for obtaining the approval of the Ad CIT/CIT/CBDT

M/s. Ganesh Ganga Investment 1. Name and address of the P. Ltd., A-52, Top assessee Floor Street No.l, Guru Nanak Pura, Laxmi Nagar, Delhi 110092 2. PAN AAACG2710J 3. Status Company 4. Ward/Circle Ward-10(1) 5. Asstt. Year in respect of which it 2010-11. is proposed to issue notice u/s 148 6. The quantum of income which has Rs.2,45,00,000/- escaped assessment 7. Whether the provisions of section 147(b) 147(a) or 147(b) are applicable or both the sections are applicable. 8. Whether the assessment is proposed to be made for the first Yes time. If the reply is affirmative,

59 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. please state (a) Whether any voluntary Yes return has already been filed. (b) If so, the date of filing of 04.02.2011 return

Sd/- H.K. Sharma Dated: 29.03.2017. ITO, Ward-10(1), New Delhi.

60 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi..

Whether the Addl. Commissioner of I. Tax is satisfied on the In view of the facts 12. reasons recorded by the ITO that notice u/s.148 to it is a fit case for the issue of be issued. notice u/s.148.

Sd/-S.K. Mittal, Pr. Commissioner of I. Tax, New Delhi.”

3.6. This approval is not valid in Law because it would show that approval have been granted without application of mind. Learned Counsel for the Assessee relied upon Judgment of the Hon’ble Delhi High Court in the case of United Electrical Co. Pvt. Ltd., vs. Commissioner of Income Tax 258 ITR 317 in which approval by Addl. Commissioner of Income Tax under section 151 was given in the following terms – “Yes” I am satisfied that it is a fit case for issue of notice under section 148 of the I.T. Act.” The Hon’ble Delhi

61 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. High Court considering the similarly worded approval did not approve the same and held that “in the present case, there has been no application of mind by Addl. Commissioner of Income Tax before granting the approval.” The assessee also relied upon Judgment of Hon’ble Supreme Court in the case of Commissioner of Income Tax vs., S. Goyanka Lime & Chemical Ltd., [2015] 64 taxmann.com 313 (SC) approving the Judgment of Hon’ble Madhya Pradesh High Court in the case of Commissioner of Income Tax, Jabalpur vs., S. Goyanka Lime & Chemical Ltd., [2015] 56 taxmann.com 390 (M.P.) in which the Departmental SLP has been dismissed on the same reason because the Joint Commissioner of Income Tax recorded satisfaction in a mechanical manner and without application of mind. The assessee also relied upon Judgment of Hon’ble Madhya Pradesh High Court in the case of Arjun Singh vs., ADIT [2000] 246 ITR 363 (M.P.) in which also similarly worded sanction under section 148 was not found valid. The assessee also relied upon Judgment of Hon’ble Delhi High Court in the case of Pr. Commissioner of Income Tax vs., N.C. Cables Ltd., [2017] 88 taxmann.com 649

62 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. (Del.) in which also on similarly worded sanction, it was held that re-assessment was not valid. The assessee also submitted that since no right of cross-examination have been allowed to the statement of Shri Himanshu Verma, therefore, such statement cannot be read in evidence against the assessee. He has relied upon Judgment of Hon’ble Supreme Court in the case of M/s. Andaman Timber Industries vs., Commissioner of Central Excise, Kolkata-II reported in 281 CTR 241.

63 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. crores under section 68 of the I.T. Act and addition of Rs.22,10,000/- on account of commission.

64 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. do not belong to Shri Himanshu Verma. In assessment order name of M/s. Management Services Pvt. Ltd., do not appear. PB-13 of the assessment order referred to the statement of Shri Himanshu Verma in which name of M/s. Shubh Propbuild Pvt. Ltd., does not appear. The A.O, therefore, recorded incorrect reasons and did not apply his mind to the material on record. The A.O. has not gone through the record and the balance Company do not belong to the assessee. The statement of Shri Himanshu Verma was not subjected to cross-examination on behalf of assessee, despite making a request to the A.O. [PB-19]. In the statement of Shri Himanshu Verma filed on record, no such companies have been mentioned, therefore, no adverse inference could be drawn against the assessee. The assessee did not receive any notice for production of the parties before A.O. There is no evidence on record of any payment of commission paid by assessee for arranging share capital. Learned Counsel for the Assessee relied upon Order of the ITAT, Delhi Bench in the case of Pioneer Town Planners Pvt. Ltd., vs. DCIT ITA.No.132/Del./2018 Dated 06.08.2018 in which in similar

65 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. circumstances the re-assessment have been quashed which case also relates to entry provided by Shri Himanshu Verma. Learned Counsel for the Assessee submitted that the A.O. issued notices to all the parties under section 133(6) of the I.T. Act. In response to the same, 26 parties filed reply supported by documentary evidences to prove genuine share application money have been received. The A.O. did not take help of any handwriting export before forming any opinion. If replies were not in order, assessee should have been confronted with the material so that assessee could rebut the same. Therefore, such fact could not be taken adversely against the assessee. The assessee never received notice Dated 11.12.2017 for production of the parties for examination. In reasons 06 parties are mentioned which belong to Shri Himanshu Verma, but, in his statement he says 08 parties, but, the A.O. made addition for 38 parties. A.O. made the addition only on the statement of Shri Himanshu Verma, but, the parties did not belong to him. Learned Counsel for the Assessee submitted that since approval is not in accordance with Law, therefore, reopening

66 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. of the assessment is bad in Law and relied upon the same Judgments as were relied upon before Ld. CIT(A). He has submitted that A.O. did not apply his mind to the reasons and recorded incorrect facts and approval is also given on incorrect facts. The initiation and approval on the basis of wrong facts is not legally valid. He has relied upon Judgment of Hon’ble Delhi High Court in the case of Commissioner of Income Tax vs., Kamdhenu Steel & Alloys Ltd., 248 CTR 33 and other decisions as was relied upon before the authorities below. The amount received from 30 companies is Rs.8.13 crores only out of total amount of Rs.11.05 crores. Therefore, there is no other material on record to justify the addition. He has submitted that A.O. cannot ask to explain source of the source. Learned Counsel for the Assessee, therefore, submitted that reopening of the assessment is invalid and no addition could be made against the assessee even on merits.

67 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. be granted. A.O. recorded details in the reasons on which Pr. Commissioner of Income Tax was satisfied. Therefore, reopening of the assessment is valid because information was received from Investigation Wing that assessee has received accommodation entries. The name of assessee was appearing. Sufficiency of reasons is not required at this stage of formation of re-assessment proceedings. The A.O. cannot do any roving enquiry at initial stage. The assessee failed to prove creditworthiness of the Investor Companies as they were having meagre income. The assessee did not prove genuineness of the transaction in the matter. The A.O. made enquiry from Investors and assessee did not produce parties before A.O. Even a premium have been charged for allotment of shares for which no reasons have been explained. The companies are having meagre income only. Apart from statement of Shri Himanshu Verma, there is enough material to justify the addition on merit. The assessee also did not prove identity and creditworthiness of the Investors even if no cross-examination to the statement of Shri Himanshu Verma have been allowed. The Ld. D.R. relied upon Judgment of

68 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Hon’ble Supreme Court in the case of Raymond Woollen Mills 236 ITR 34 (SC). He has submitted that information is prima facie relevant and there is sufficient material on record to justify the initiation of re-assessment proceedings. The assessee failed to prove that no notice Dated 11.12.2017 have been received. The Ld. D.R. relied upon the following decisions. 1. PCIT vs., Paramount Communication (P.) Ltd., 2017- TIOL-253-SC-IT. 2. PCIT vs., Paramount Communication (P.) Ltd., [2017] 392 ITR 444 (Del.) (HC) 3. Aradhna Estate (P.) Ltd., vs. DCIT [2018] 91 taxmann.com 119 (Gujarat) (HC). 4. Pushpak Bullion (P.) Ltd., vs. DCIT [2017] 85 taxmann.com 84 (Gujarat) (HC). 5. Ankit Financial Services Ltd., vs. DCIT [2017] 78 taxmann.com 58 (Gujarat) (HC). 6. Aaspas Multimedia Ltd., vs. DCIT [2017] 83 taxmann.com 82 (Gujarat) (HC). 7. Ankit Agrochem (P.) Ltd., vs. JCIT [2018] 89 taxmann.com 45 (Rajasthan) (HC). 8. Yogendrakumar Gupta vs., ITO [2014] 227 Taxman 374 (SC).

69 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 8. We have considered the rival submissions. It is well settled Law that validity of re-assessment proceedings is to be examined with reference to the reasons recorded for reopening of the assessment. The Counsel for Assessee has filed copy of the reasons recorded for reopening of the assessment at Page-15 of the Paper Book which reads as under :

“M/s. Ganesh Ganga Investments Pvt. Ltd.,

PAN AAACG2710J A.Y. 2010-11

The assessee filed return of income for the A.Y. 2010-11 on 04.02.2011 declaring loss of Rs.(-) 14,162/-. The return was processed u/s 143(1).

Information was forwarded to this office through the Addl.CIT, Range-10, New Delhi that search & seizure action was conducted by Inv. Wing at the office of Sh. Himanshu Verma where various incriminating documents/materials were seized during the course of search. During the post search investigation and perusal of seized documents it was observed that Sh.

70 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Himanshu Verma was engaged in the business of providing accommodation-' entries by providing cheques/PO/DD in lieu of cash to a large number of beneficiary companies thorough various paper and dummy companies floated and controlled by them. It was also evidently established by the Investigation Wing that Sh Himanshu Verma is known entry providers and is the actual controller of more than 100 companies/proprietary firms/partnership firms. They control these entities through various persons by appointing them as directors/partners/proprietors apart from nominating them as authorized signatories for maintaining the bank accounts of these entities but in fact all these persons act only as their stooges. The cash received from the recipient parties for providing the accommodation entries was first deposited in the accounts of these dummy firms/companies in the disguise of the cash received against the bogus sales, duly shown in the books of accounts. From there, this cash was transferred to the different paper companies

71 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. floated by Sh. Himanshu Verma through a complex trail of transactions, so as to hide the actual sources of funds of the last set of recipient companies of Sh. Himanshu Verma

In this way, the reserve & surpluses and the capital account of a specific set of companies are enhanced with the help of the unexplained cash received by Himanshu Verma, which is routed to these companies through their dummy firm/companies. Once the funds of these companies have been enhanced sufficiently, accommodation entries through RTGS/ Cheque in the shape of the share capital, capital gains or loans as per the specific requirement of the recipient clients were provided to them in lieu of the cash received from them. In this way, the chain for providing an accommodation entry gets completed.

It is noticed from the list of entries that the assessee M/s Ganesh Ganga Investment P. Ltd. has

72 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. taken following accommodation entries during the financial year 2009-10 :-

S.No. Amount Conduit companies through which cheque issued. 1. 4000000 Shubh Propbuild P Ltd., 2. 4000000 Jaguar Softech P. Ltd., 3. 4000000 Join Fashion P. Ltd., 4. 4500000 Management Services P. Ltd., 5. 4000000 Greenvision Construction P. Ltd., 6. 4000000 USK Exim P. Ltd., TOTAL 2,45,00,000/-

On the basis of the reports received from the Investigation Wing, I have downloaded the return from the ITD portal and verified the records and it is clear that the assessee company has not disclosed fully and truly all material facts necessary for its assessment for the assessment year under consideration as it emerges that transactions shown in the return are not genuine. Apart from the above the assessee company is not doing any real business and keeping in view the huge investments, disallowances u/s 14A read with rule 8D also applicable in the case. The statement given by Shri Himanshu Verma also establishes the link with the self-confessed "accommodation entry providers",

73 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. whose business is to help assessees bring back their unaccounted money into their books of account. Thus, there is a direct link between the information/available with the department and the income escaping assessment.

I have, therefore, reasons to believe that income to the extent of Rs.2,45,00,000/- has escaped assessment relevant to A.Y.2010-11. Thus, the same is to be brought to tax under section 147/148 of the I.T. Act 1961.

Moreover, as the case pertains to a period beyond four years from the end of relevant assessment year, for issuing the notice u/s 148, necessary approval / sanction may kindly be accorded by the Pr. Commissioner of Income Tax, Delhi-4, New Delhi in view of the amended provision of section 151 w.e.f 01.06.2015.

Sd/- H.K. Sharma, Dated : 27.03.2017. ITO, Ward-10(1), New Delhi.”

74 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 8.1. PB-29 is the sanction granted by Pr. Commissioner of Income Tax for reopening of the assessment in which it is mentioned as under :

Whether the Pr. Commissioner of I. Yes I am satisfied Tax is satisfied on the reasons that it is a fit case 13. recorded by the ITO that it is a fit for issue of notice case for the issue of notice u/s.148 of the I.T. u/s.148. Act, 1961.

Sd/-S.K. Mittal, Pr. Commissioner of I. Tax, New Delhi.”

8.2. Learned Counsel for the Assessee relied upon Judgment of Hon’ble Delhi High Court in the case of United Electricals Company (supra) in which the Addl. Commissioner of Income Tax similarly recorded the approval “Yes” I am satisfied that it is a fit case for issue of notice under section 148 of the I.T. Act.” In this case the Hon’ble Delhi High Court held as under :

“On a careful perusal of the statement made by V' it was found that facts mentioned in reasons were de hors the facts available on record. It was

75 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. evident that the said statement was too general. It did not mention any name much less the name of the assessee. It was not the stand of the revenue that a list of the creditors, which included the name of the assessees, was furnished by V' subsequently and the same was forwarded to the Assessing Officer of the assessee. Applying the aforenoted settled principles governing an action under section 147, there could be no hesitation in holding that there was no information on record which could provide foundation for the Assessing Officer's belief that the assessee’s transaction with ‘V’ Ltd. was not genuine and its income had escaped assessment on that account. Therefore, the impugned action of the Assessing Officer could not be sustained. Even the Addl Commissioner had accorded his approval for action under section 147 mechanically. If the Addl. Commissioner had cared to go through the statement of said V ’perhaps he would not have granted his approval,

76 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. which is mandatory in terms of proviso to sub- section (1) of section 151 as the action under section 147 was being initiated after the expiry of four years from the end of the relevant assessment year. The Legislature has provided certain safeguards to prevent arbitrary exercise of powers by an Assessing Officer particularly after a lapse of substantial time from completion of assessment. The power vested in the Commissioner to grant or not to grant the approval is coupled with a duty. The Commissioner is required to apply his mind to the proposal put up to him for approval in the light of the material relied upon by the Assessing Officer. The said power cannot be exercised casually and in a routine manner. In the instant case, there had been no application of mind by the Addl. Commissioner before granting the approval.

The petition was, thus, allowed and impugned notice was quashed.”

77 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 8.3. The Hon’ble Supreme Court approving the Judgment of Hon’ble Madhya Pradesh High Court in the case of Commissioner of Income Tax, Jabalpur (MP) vs., S. Goyanka Lime & Chemicals Ltd., [2015] 46 taxmann.com 313 held as under :

“SLP dismissed against High Court’s ruling that where Joint Commissioner recorded satisfaction in mechanical manner and without application of mind to accord sanction for issuing notice under section 148, reopening of assessment was invalid.”

8.4. Similar view have been taken by Hon’ble Madhya Pradesh High Court in the case of Mr. Arjun Singh vs., Asst. Director of Income Tax [2000] 246 ITR 363 (MP) (supra), copy of which is filed at page-97 of the paper book. The ITAT, Delhi Bench in the case of M/s. Pioneer Town Planners Pvt. Ltd., vs., DCIT (supra) in paras 7 to 22 on similar facts relating to entry provider Shri Himanshu Verma held as under :

78 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. “7. Apropos these legal grounds , we have heard the arguments of both sides and carefully perused the relevant material placed on the record of the Tribunal. As agreed by both the parties, we have heard argument of both the sides on these legal grounds of the assessee, wherein the assessee has challenged to the initiation of reassessment proceedings and reopening of assessment u/s. 147/148 of the Act. The ld. AR submitted that the impugned order of assessment is invalid and unsustainable in law as the same has been passed by the AO without providing the reasonable time of four weeks for taking remedy against the order of disposal of preliminary objection against the incorrect assumption of jurisdiction by the AO u/s. 147 of the Act in violation of principles enunciated by Bombay High Court in the case of Asian Paints Ltd. 296 ITR 90. He further submitted that the Impugned orders of authorities below need be set aside as the

79 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. reassessment proceedings have been initiated without obtaining a subjective satisfaction by the Pr. CIT Delhi-7, New Delhi as the approval u/s 151 is mechanical and without application of mind.

80 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. approval without application of mind by writing only ‘Yes, I am satisfied’. The ld. AR submitted that as per decision of Hon Madhya Pradesh High Court in the case of CIT vs. M/s. S. Goyanka Lime and Chemicals Ltd. 231 Taxman 0073 (MP), where the Joint Commissioner recorded satisfaction in mechanical manner and without application of mind to accord sanction for issuing notice u/s. 148 of the Act and has only recorded so “Yes, I am satisfied” then, the reopening assessment has to be held as invalid. The ld. AR also placed reliance on the decision of ITAT, Delhi in the case of ITO vs. Virat Credit & Holdings Pvt. Ltd. in ITA No.89/Del/2012 dated 09.02.2018. The ld. AR submitted that as per decision of Hon'ble High Court of Bombay in WP (L) No.3063/2017 in the case of Smt. Kalpana Shantilal Haria vs. ACIT dated 22.12.2017, sanction for issuing a reopening notice cannot be mechanical but has to be on due application of mind. Sanction accorded despite

81 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. mention of non-existent section in the notice is prima facie evidence of non-application of mind on the part of the sanctioning authority. Their lordship in this judgment categorically held that such defect cannot be cured u/s. 292B of the Act.

82 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. of this fact renders the consequent assessment invalid in law, Relied on the judgment of DSJ Communication vs. DCIT 222 Taxman 129 (Bom.).

83 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. consequent orders are void and thus, bad in law. This view was again approved by Hon'ble High Court of Bombay itself in the subsequent decision in the case of Aroni Commercials Ltd. vs. DCIT reported in 362 ITR 403 (Bom) and followed by ITAT, Bombay in the case of Shri Hirachand Kanuga vs. DCIT in ITA No.4261 & 4262/2012 dated 27.02.2015.

84 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. proceedings void and bad in law. Present impugned reassessment order cannot be held sustainable and valid as the AO has passed the same immediately after 10 days of disposal of/dismissal of objection of the assessee which is clear violation of direction of Hon'ble High Court of Bombay in the case of Asian paints (supra) and legal contention of the assessee on this issue are found to be acceptable and we hold so.

85 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. satisfaction and it has to be presumed that there is no independent application of mind by the AO to the tangible material which forms the basis of the reason to believe that income has escaped assessment. The ld. AR submitted that from the three pages of reasons recorded, it is discernable that in first four paras the AO has noted facts of the information received from DDIT (investigation), Faridabad, in para 6 modus operandi of entry providers has been noted thereafter, in para 7 & 8, it has been arisen that either during survey or post survey proceedings the assessee company has not submitted satisfactory explanation to prove identity, genuineness and creditworthiness of share capital/premium introducers and thus, the same is from paper companies of entry operator and then, he recorded satisfaction that the assessee company taken bogus/ accommodation entries. The ld. AR vehemently pointed out that thereafter in last para 9 & 10, the AO, without

86 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. applying mind to the information received from the Investigation Wing, recorded that he has reason to believe that the an income has escaped assessment which clearly shows that the AO proceeded to initiate initiatory assessment proceedings and reopening of assessment without having any valid satisfaction on the basis of borrowed satisfaction as there was no independent application of mind to the tangible material received from Investigation Wing, which could form the basis reason to believe that income has escaped assessment.

87 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. had escaped assessment. The Court held that the basic requirement of s. 147 of the Act that AO should apply independent mind in order to form reasons to believe that income had escaped assessment had not been fulfilled.

88 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 16. Replying to the above, the ld. DR submitted that the copy of proforma for obtaining approval u/s. 151 of the Act and reasons recorded by the AO are the internal departmental communication between the PCIT and ACIT and the PCIT being administrative head and senior to the ACIT has power to peruse the approval u/s. 151 of the Act and his sings thereon does not make the same as mechanical and without application of mind and the same cannot be termed or alleged as invalid or bad in law. The ld. DR submitted that in column 12 of approval the ACIT Shri Sarabjeet Singh has granted valid approval by noting that “Yes, I am satisfied” which is sufficient to comply with the provisions of s. 151 of the Act. He also submitted that if there is any defect therein the same is rectifiable u/s. 292B of the Act and thus, the reassessment proceedings and orders cannot be challenged on this count. The ld. DR further submitted that the format/proforma for granting

89 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. approval u/s. 151 of the Act has been designed by the Department and there is no role of AO in framing and designing the same and the allegation of non-application of mind on the basis of such proforma or words used by the approving authority cannot be made.

90 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Therefore, allegations made by the ld. AR are not sustainable and tenable and the same may kindly be dismissed.

91 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. credible input available to him through DDIT (investigation) information or otherwise on the basis of any exercise or application of mind by himself. Therefore, the reassessment proceedings and all consequent orders are not sustainable and bad in law. Reiterating his earlier arguments, the ld. AR vehemently pointed out that the approval/sanction given in para 12 of the proforma is not a valid sanction as per ratio of the various decisions including decision of Hon'ble High Court of Madhya Pradesh in the case of S. Goyanka Lime and chemicals Ltd. (supra), which has been upheld by Hon'ble Supreme Court by dismissing SLP of the Revenue reported in 237 Taxman 378 (SC) therefore, initiation of reassessment proceedings u/s. 147 of the Act, notice u/s. 148 of the Act, reassessment proceedings and all consequent orders may kindly be quashed.

92 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 19. On careful consideration of above rival submissions, first of all, we may point out that from the proforma of approval u/s. 151 of the Act placed at pgs. 16-17 of the assessee paper book, it is clear that in column 12 the ACIT has granted approval for the issue of notice u/s. 148 of the Act by writing that “Yes, I am satisfied” which is not sufficient to comply with the requirement of s. 151 of the Act. As per ratio of the decision of High Court of Madhya Pradesh in the case of CIT v. M/s. S. Goyanka Lime and Chemical Ltd. (supra), where the JCIT/ACIT has only recorded “Yes, I am satisfied” then, it has to be held that the approving authority has recorded satisfaction in a mechanical manner and without application of mind to accord sanction for issuing notice u/s. 148 of the Act for reopening of assessment and in this situation initiation of reassessment proceedings and reopening of assessment has to be held as invalid and bad in law. Therefore, we are inclined

93 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. to hold that the reopening of assessment and notice u/s. 148 of the Act are bad in law and consequently all subsequent proceedings in pursuant thereto are also bad in law and the same cannot be held as valid and sustainable.

94 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. from paper companies of entry operator and then, he recorded satisfaction that the assessee company taken bogus/accommodation entries. Thereafter, the AO in last para 9 & 10, without applying mind to the information received from the Investigation Wing states/writes that he has reason to believe that the income has escaped assessment. The text and words used by the AO in the reasons recorded for reopening of assessment clearly show that the AO proceeded to initiatory assessment proceedings and reopening of assessment without having any valid satisfaction and only on the basis of borrowed satisfaction as there was no independent application of mind by the AO to the tangible material received from Investigation Wing which could form the valid basis and reason to believe that income has escaped assessment.

95 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. (supra), PCIT vs. G&G Pharma (I) Ltd. (supra) and decision in the case of PCIT vs. RMG Polyviny (I) Ltd. (supra), where information was received from investigation wing that assessee was beneficiary of accommodation entries but no further inquiry was undertaken by AO, said information could not be said to be tangible material per se and, thus, reassessment on said basis was not justified. In the case of Meenakshi Overseas (supra), their lordship speaking for the Hon'ble Jurisdictional High Court held that where the reasons recorded by the AO failed to demonstrate the link between the tangible material and the formation of the reasons to believe that income has escaped assessment then, indeed it is a borrowed satisfaction and the conclusion of the AO based on reproduction of conclusion drawn in the investigation report cannot be held as valid reason to believe after application of mind. In this judgment their lordship also held that where

96 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. nothing from the report of investigation wing is set out to enable the reader to appreciate how the conclusions flow there from then there is no independent application of mind by the AO to the tangible material which form the basis of the reasons to believe that income has escaped assessment.

97 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Department. Therefore, we have no hesitation to hold that the AO proceeded to initiate reassessment proceedings u/s. 147 of the Act and to issue notice u/s. 148 of the Act on the basis of borrowed satisfaction and without any application of mind and examination of the so called material and information received from the investigation wing to establish any nexus, even prima facie, with the such information. Therefore, in our considered opinion the initiation of reassessment proceedings u/s. 147 of the Act, notice u/s. 148 of the Act, reassessment proceedings and all consequent proceeding and orders, including impugned reassessment and first appellate order, are bad in law and thus, not sustainable and we hold so. Accordingly, on the basis of foregoing discussion, grounds No.2, 3, 4 and additional ground of the assessee are allowed and impugned proceedings, notice u/s. 148 of the Act and all consequent orders are quashed.”

98 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 8.5. The statement of Shri Himanshu Verma is also filed on record which did not find mention if M/s. Shubh Propbuild Pvt. Ltd., as mentioned in the reasons belong to Shri Himanshu Verma. There is no investor exist in the name of M/s. Management Services Pvt. Ltd., and no addition in respect of the same company have been made by the A.O. The A.O, therefore, recorded incorrect facts in the reasons for reopening of the assessment. Thus the same cannot be approved under the Law. It is well settled Law if wrong facts and wrong reasons are recorded for reopening of the assessment, reopening of the assessment would be invalid and bad in Law. We rely upon Judgment of Hon’ble Punjab & Haryana High Court in the case of Atlas Cycle Industries 180 ITR 319 (P&H). It is well settled Law that note already filed with return disclosing nature of capital receipt and no other tangible material found, therefore, reopening of the assessment under section 148 was quashed. We rely upon Judgment of Hon’ble Delhi High Court in the case of CIT vs., Atul Kumar Swami [2014] 362 ITR 693 (Del.) and Judgment of Hon’ble Allahabad High Court in the case of Kanpur Texel

99 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. P. Ltd., 406 ITR 353 (Alld.). Similarly, in the case of CIT vs., Vardhaman Industries [2014] 363 ITR 625 (Raj.), the Hon’ble Rajasthan High Court has held that “reasons must be based on new and tangible materials. Notice based on documents already on record, 148 not valid.” In the instant case under appeal, the A.O. has reproduced the information received from Investigation Wing and reproduced the same in the reasons recorded under section 148 of the I.T. Act. This information shows that assessee has received the amount of credit from 06 parties, but, one of the party i.e., M/s. Management Services Pvt. Ltd., do not exist and that M/s. Shubh Propbuild Pvt. Ltd., do not belong to Shri Himanshu Verma. It, therefore, appears that A.O. has not gone through the details of the information and has not even applied his mind and merely concluded that he has reason to believe that income chargeable to tax has escaped assessment. In the reasons A.O. has recorded that assessee has received accommodation entry of Rs.2.45 crores, but, ultimately made an addition of Rs.11.05 crores without bringing any material against the assessee. The reasons to believe are, therefore,

100 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. not in fact reasons, but, only conclusion of the A.O. In the case of Meenakshi Overseas Pvt. Ltd., (supra), the A.O. in the reasons has even mentioned that he has gone through the information received which is lacking in the present case. The A.O. being a quasi-judicial authority is expected to arrive at subjective satisfaction independently on his own. The A.O. however, merely repeated the report of the Investigation Wing in the reasons and formed his belief that income chargeable to tax has escaped assessment without arriving at his satisfaction. Thus, there is no independent application of mind by the A.O. to the report of Investigation Wing to form the basis for recording the reasons. The reasons recorded by the A.O. are also incorrect as noted above. The reasons failed to demonstrate the link between the alleged tangible material and the formation of reasons to believe that income chargeable to tax has escaped assessment. The decisions relied upon by the Learned Counsel for the Assessee in the cases of Pr. Commissioner of Income Tax vs., RMG Polyvinyl (I) Ltd., 396 ITR 5 (Del.), Pr. Commissioner of Income Tax vs., Meenakshi Overseas (P) Ltd., 395 ITR 677 (Del.), Pr.

101 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. Commissioner of Income Tax vs., G and G Pharma India Ltd., 384 ITR 147 (Del.) and Sarthak Securities Co. (P) Ltd., 329 ITR 110 (Del.), clearly apply to the facts and circumstances of the case. Learned Counsel for the Assessee also relied upon Order of ITAT, Delhi Bench in the case of Pioneer Town Planners Pvt. Ltd., (supra) in which on identical facts reopening of the assessment have been quashed. The Ld. D.R. relied upon certain decisions in support of the contention that reopening of the assessment is justified, but, the same are distinguishable on facts of the present case. Considering the facts and circumstances of the case in the light of above discussion and decisions referred to in the Order, we are of the view that reopening of the assessment is bad in law and that sanction/approval granted by Pr. Commissioner of Income Tax is also invalid. We may also note that vide Order sheet Dated 23.08.2019 the case was re-fixed for hearing because the Ld. D.R. argued that approval have been granted by Commissioner of Income Tax after due discussion of the matter and perusal of the relevant information and thereafter approval in prescribed proforma sent to the A.O. and he has

102 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. mentioned that I am satisfied. However, no record was produced. Therefore, this case was re-fixed for fresh hearing. However, on the date of hearing no such record have been produced for the inspection of the Bench. Therefore, satisfaction recorded by the Pr. Commissioner of Income Tax is invalid and without application of mind. Therefore, the reopening of the assessment is invalid and bad in Law and cannot be sustained in Law. We, accordingly, set aside the Orders of the authorities below and quash the reopening of the assessment under section 147/148 of the I.T. Act, 1961. Resultantly, all additions stands deleted. Since we have quashed the reopening of the assessment, therefore, there is no need to decide the addition on merit which is left with academic discussion only.

5.2. Considering the facts of the case in the light of above decisions, it is clear that all the documents and Annexures referred to in the reasons have not been supplied to the assessee and that approval granted by Pr. CIT is invalid. Therefore, reopening of the assessment is wholly

103 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. invalid and void abinitio. Resultantly, the reopening of the assessment is liable to be quashed. Following the reasons for decision in the case of M/s. Ganesh Ganga Investments Pvt. Ltd., vs., ITO, Ward-10(1), New Delhi (supra), we set aside the Orders of the authorities below and quash the reopening of the assessment. In the result, all the additions stand deleted.

6.4. Considering the totality of the facts and circumstances of the case and that wrong Section have been mentioned in the reasons and some of the Columns material for re-assessment are left ‘Blank’ and that Addl. CIT did not record how he was satisfied on wrong facts and wrong reasons would clearly show that reopening have been done in the matter without application of mind based on wrong facts and as such the reopening of the assessment cannot be justified. It may also be noted here that the Learned Addl. CIT, Range-12, Delhi while granting sanction under section 151 of the I.T. Act has mentioned in the reasons that “Yes, I am satisfied that this is a fit case for reopening under section

104 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. 147.” Such a satisfaction was not found valid by ITAT, Delhi Benches in the cases of Shree Balkishan Agarwal Glass Industries Ltd., Delhi vs., DCIT (supra) and M/s. Behat Holdings Ltd., Delhi vs., ITO, Ward-4(3), New Delhi (supra), based on several decisions of the Hon’ble High Courts. Thus, the issue is covered against the Revenue by the above decisions of the Tribunal as well. The A.O. has thus no justification to assume jurisdiction under section 147 of the I.T. Act, 1961, in a Lawful manner and as such the same are liable to be quashed. In view of the above discussion, we set aside the Orders of the authorities below and quash the reopening of the assessment. Resultantly, all additions stand deleted. Since we have quashed the reopening of the assessment, therefore, there is nothing to decide the issue of addition on merits. Appeal of the Assessee allowed.

6.1. The form for recording reasons was also same in this case as is mentioned by the A.O. in the case of assessee. Thus, the issue is squarely covered in favour of the assessee by the aforesaid decision of the Delhi Tribunal

105 ITA.No.4257/Del./2019 Maheshwari Roller Flour Mills Pvt. Ltd., New Delhi.. in the case of VRC Township Pvt. Ltd., Delhi (supra). Following the reasons for the same, we set aside the Orders of the authorities below and quash the reopening of the assessment under section 147/148 of the I.T. Act. Resultantly, all additions stand deleted. In view of the above findings, the other grounds are left with academic discussion only. Accordingly, appeal of the Assessee allowed.

Order pronounced in the open Court.

Sd/- Sd/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Delhi, Dated 17th December, 2020 VBP/- Copy to 1. The appellant 2. The respondent 3. CIT(A) concerned 4. CIT concerned 5. D.R. ITAT ‘SMC-II’ Bench, Delhi 6. Guard File. // BY Order //

Assistant Registrar : ITAT Delhi Benches : Delhi.