SRI NEERAJ UMA SHANKAR MURARKA,MUMBAI vs. ITO, WARD - 35(2), KOLKATA , KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Accountant Member) ITA No. 1653/Kol/2019 Assessment Year: 2010-11 Neeraj Umashankar Murarka….…………........................................................……………….…......Appellant C/o Shri Jitendra Kaushik, Advocate 19D, Muktaram Babu Street Kolkata – 700 007 [PAN : AEYPM 0328 R] Vs. Income Tax Officer, Ward-35(2), Kolkata……………………………................….………....…....Respondent Appearances by: Shri N. Kaushik, FCA, appeared on behalf of the assessee. Shri Jayanta Khanra, JCIT Sr. D/R, appearing on behalf of the Revenue. Date of concluding the hearing : January 6th, 2019 Date of pronouncing the order : January 15th, 2020 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) – 10, Kolkata, (hereinafter the “ld.CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 27/05/2019, for the Assessment Year 2010-11. 2. The main issue argued before me is whether the reopening of assessment u/s 147 of the Act, is valid in law. 3. After hearing rival contentions, I find that the reasons of reopening are as follows:- “The assessee filed his return of income for the A.Y. 2010-11 on 29.09.2010 declaring a total income of Rs. NIL/-. The Return was processed u/s 143(1) of the I.T. Act. 1961 on 07.05.2011. Information has been received from the DGIT(lnv.), Kolkata regarding systematic evasior of taxes by clients/members of the NMCE (M/s National Multi- Commodity Exchange) during the different Financial Years by misusing the NMCE platform. Based on the Forwards Market Commission (FMC) report that "clients/members of NMCE were found to be involved in creating artificial volume and suspected evasion of Income Tax by misuse of NMCE platform," a focused survey action u/s 133A of the I. T. Act, 1961 was conducted by Pr. Director of Income Tax (Investigation), Ahmedabad at the premise of NMCE and backup of the NMCE trade was taken. After analysis of this data, 85 entities was identified who had booked contrived losses in excess of Rs.10 Crores and information was shared with concerned Director General of Income Tax (lnv.). In this context, the list of 50 clients was forwarded to the DGIT (Inv.) Kolkata jurisdiction to verify whether the contrived losses booked or NMCE were used to set off any income/profit available in the books.

2 ITA No. 1653/Kol/2019 Assessment Year: 2010-11 Neeraj Umashankar Murarka On the basis of the above information, investigation were carried out by On the basis of the above information, investigation were carried out by On the basis of the above information, investigation were carried out by DDIT(lnv.), Unit 3(1), Kolkata on these 50 dummy entities and during investigation DDIT(lnv.), Unit 3(1), Kolkata on these 50 dummy entities and during investigation DDIT(lnv.), Unit 3(1), Kolkata on these 50 dummy entities and during investigation it has been noticed that assessee, as mentioned above, is one of the real it has been noticed that assessee, as mentioned above, is one of the real it has been noticed that assessee, as mentioned above, is one of the real beneficiaries, to whom bog beneficiaries, to whom bogus loss or profit were facilitated by these dummy entities. us loss or profit were facilitated by these dummy entities. The data pertaining to the above mentioned assessee is as mentioned below: The data pertaining to the above mentioned assessee is as mentioned below: The data pertaining to the above mentioned assessee is as mentioned below: Name F.Y. Total Total Sell Difference P/L Sub-Broker Buy Booked Booked Neeraj 2009- 37223200 38714650 1491450 PROFIT PROFIT Yashwi Murarka 10 Commodities Pvt. Ltd.

It is therefore apparent that the assessee has booked Profit of Rs. It is therefore apparent that the assessee has booked Profit of Rs. It is therefore apparent that the assessee has booked Profit of Rs. 14,91,450/- through bogus entities. through bogus entities. Considering the facts and circumstances of the case, I have reason to believe Considering the facts and circumstances of the case, I have reason to believe Considering the facts and circumstances of the case, I have reason to believe that income chargeable to tax has escaped that income chargeable to tax has escaped assessment and it has not been disclosed assessment and it has not been disclosed in the Return of the assessee for the relevant A. Y. 2010 in the Return of the assessee for the relevant A. Y. 2010-11 and the assessee is liable 11 and the assessee is liable to pay tax and corresponding interest on that amount. Hence, I have reason to to pay tax and corresponding interest on that amount. Hence, I have reason to to pay tax and corresponding interest on that amount. Hence, I have reason to believe that this escaped income needs to be asse believe that this escaped income needs to be assessed followed by recovery of tax ssed followed by recovery of tax arrears. Form ITNS-l0 along with relevant enclosures are put up before the Ld. l0 along with relevant enclosures are put up before the Ld. l0 along with relevant enclosures are put up before the Ld. Pr.ClT-12, Kolkata for kind perusal and approval, if deemed fit.” 12, Kolkata for kind perusal and approval, if deemed fit.” 4. This Bench of the Tribunal in the assessee’s own case for the Assessment This Bench of the Tribunal in the assessee’s own case for the Assessment This Bench of the Tribunal in the assessee’s own case for the Assessment Year 2009-10 on identical circumstances, on similar reasons, 10 on identical circumstances, on similar reasons, recorded for reopening of recorded for reopening of assessment held as follows:- - 9. We have heard both the parties and perused the material available on record. The ld Counsel for 9. We have heard both the parties and perused the material available on record. The ld Counsel for 9. We have heard both the parties and perused the material available on record. The ld Counsel for the assessee submitted before us that the solitary grievance of the assessee in this appeal is that the the assessee submitted before us that the solitary grievance of the assessee in this appeal is that the the assessee submitted before us that the solitary grievance of the assessee in this appeal is that the ld. Commissioner of Income Tax (Appeals) was erred in ld. Commissioner of Income Tax (Appeals) was erred in accepting the validity of issue of notice accepting the validity of issue of notice under section 147 of the Act, by the Income Tax Officer, of the Act, by the Income Tax Officer, for alleged Client Code Modification by the for alleged Client Code Modification by the assessee's broker. On the other hand, the ld. DR for the Rev assessee's broker. On the other hand, the ld. DR for the Revenue has primarily reiterated the stand enue has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and the same is not taken by the Assessing Officer which we have already noted in our earlier para and the same is not taken by the Assessing Officer which we have already noted in our earlier para and the same is not being repeated for the sake of brevity. We note that assessee has challenged the validity of issue of being repeated for the sake of brevity. We note that assessee has challenged the validity of issue of being repeated for the sake of brevity. We note that assessee has challenged the validity of issue of notice under section 147/ /148 of the Act, therefore, to meet the end of justice, we confine ourselves therefore, to meet the end of justice, we confine ourselves to the core of the controversy and main grievances of the assessee to the core of the controversy and main grievances of the assessee in respect of validity of issue of in respect of validity of issue of notice under section 147/ /148 of the Act and therefore we do not adjudicate the assessee`s appeal of the Act and therefore we do not adjudicate the assessee`s appeal on merit. First of all, let us examine the reasons recorded by the assessing officer, which are given below for all, let us examine the reasons recorded by the assessing officer, which are given below for all, let us examine the reasons recorded by the assessing officer, which are given below for ready reference: "Information has been received from the Pr. DIT (INV), Ahmedabad vide his letter bearing "Information has been received from the Pr. DIT (INV), Ahmedabad vide his letter bearing "Information has been received from the Pr. DIT (INV), Ahmedabad vide his letter bearing No. PDIT(INV)/CCM/Dissemination/15 No. PDIT(INV)/CCM/Dissemination/15-16 dated 08.03.2016 that some brokers by that some brokers by misusing the client code modification facility in derivatives on NSE during March, 2010 misusing the client code modification facility in derivatives on NSE during March, 2010 misusing the client code modification facility in derivatives on NSE during March, 2010 created fictitious losses and transferred the same to their clients as per the requirement created fictitious losses and transferred the same to their clients as per the requirement created fictitious losses and transferred the same to their clients as per the requirement and earned commission. The clients had taken fictitious and earned commission. The clients had taken fictitious losses to set off against their losses to set off against their profits with a view to reduce their tax liability. The details of such client code modification profits with a view to reduce their tax liability. The details of such client code modification profits with a view to reduce their tax liability. The details of such client code modification transactions have been provided in CD. On analysis of the details contained in the CD, it is transactions have been provided in CD. On analysis of the details contained in the CD, it is transactions have been provided in CD. On analysis of the details contained in the CD, it is apparent that profit of Rs.13,11,49 apparent that profit of Rs.13,11,490/- was shifted out by Neeraj Umashankar Murarka, was shifted out by Neeraj Umashankar Murarka, who is assessed in this charge under PAN: AEYPM0328R, and loss of Rs.37,60,340/ who is assessed in this charge under PAN: AEYPM0328R, and loss of Rs.37,60,340/ who is assessed in this charge under PAN: AEYPM0328R, and loss of Rs.37,60,340/- were transferred in the case of the assesse by the broker R K Global Shares & Securities Limited transferred in the case of the assesse by the broker R K Global Shares & Securities Limited transferred in the case of the assesse by the broker R K Global Shares & Securities Limited through client code modifica through client code modification. Thus, the net reduction in income due to client code tion. Thus, the net reduction in income due to client code modification is Rs.50,71,830/ modification is Rs.50,71,830/-.

3 ITA No. 1653/Kol/2019 Assessment Year: 2010-11 Neeraj Umashankar Murarka As per information available from records, Shri Neeraj Umashankar Murarka has not filed As per information available from records, Shri Neeraj Umashankar Murarka has not filed As per information available from records, Shri Neeraj Umashankar Murarka has not filed his return of income for the assessment year 2009 his return of income for the assessment year 2009-10. Therefore, I have reas 10. Therefore, I have reason to believe that the amount of Rs. 50,71,830/ that the amount of Rs. 50,71,830/- and the amount paid as commission have escaped and the amount paid as commission have escaped assessment for the assessment year 2009 assessment for the assessment year 2009-10." Having gone through the reasons recorded by the assessing officer, as mentioned above, we notice Having gone through the reasons recorded by the assessing officer, as mentioned above, we notice Having gone through the reasons recorded by the assessing officer, as mentioned above, we notice that the reasons recorded by the Assessing Officer do not spell out the belief of the Assessing Officer. recorded by the Assessing Officer do not spell out the belief of the Assessing Officer. recorded by the Assessing Officer do not spell out the belief of the Assessing Officer. From the reasons recorded, it seems to us that it is a borrowed satisfaction. The information on the From the reasons recorded, it seems to us that it is a borrowed satisfaction. The information on the From the reasons recorded, it seems to us that it is a borrowed satisfaction. The information on the basis of which the AO has initiated proceedings u/s 147 of the Act basis of which the AO has initiated proceedings u/s 147 of the Act are undoubtedly vague and are undoubtedly vague and uncertain and cannot be construed to be sufficient and relevant material on the basis of which a uncertain and cannot be construed to be sufficient and relevant material on the basis of which a uncertain and cannot be construed to be sufficient and relevant material on the basis of which a reasonable person could have formed a belief that income had escaped assessment. The above reasonable person could have formed a belief that income had escaped assessment. The above reasonable person could have formed a belief that income had escaped assessment. The above reasons recorded by the AO do not disclose reasons recorded by the AO do not disclose the AO's mind as to what was the nature and amount of the AO's mind as to what was the nature and amount of transaction or entries, which had been given or taken by the assessee in the relevant year and transaction or entries, which had been given or taken by the assessee in the relevant year and transaction or entries, which had been given or taken by the assessee in the relevant year and event of client code modification, the broker R K Global Shares & Securities Limited. The assessing event of client code modification, the broker R K Global Shares & Securities Limited. The assessing event of client code modification, the broker R K Global Shares & Securities Limited. The assessing officer did not apply his mind, he just reopened the assessment under r did not apply his mind, he just reopened the assessment under section 147 section 147/148 based on the information received, from the Pr. DIT (INV), Ahmedabad. Ho information received, from the Pr. DIT (INV), Ahmedabad. How far this information is related the w far this information is related the assessee has not been examined by the AO, therefore, in our opinion, it is a general statement which assessee has not been examined by the AO, therefore, in our opinion, it is a general statement which assessee has not been examined by the AO, therefore, in our opinion, it is a general statement which is applicable to some brokers, which is evident from the reasons recorded, that is: is applicable to some brokers, which is evident from the reasons recorded, that is: is applicable to some brokers, which is evident from the reasons recorded, that is: ".....some brokers by misusing t ".....some brokers by misusing the client code modification facility in derivatives on NSE he client code modification facility in derivatives on NSE during March, 2010...." during March, 2010...." Hence, it is abundantly clear the reasons recorded by the assessing officer is a general statement Hence, it is abundantly clear the reasons recorded by the assessing officer is a general statement Hence, it is abundantly clear the reasons recorded by the assessing officer is a general statement which relate to 'Some Brokers' therefore, does not spell out the belief o which relate to 'Some Brokers' therefore, does not spell out the belief of the Assessing Officer, f the Assessing Officer, hence, the reasons recorded by the Assessing Officer is itself bad in law. the reasons recorded by the Assessing Officer is itself bad in law. 10. We note that from the reasons recorded, the reopening of the assessment is on the information 10. We note that from the reasons recorded, the reopening of the assessment is on the information 10. We note that from the reasons recorded, the reopening of the assessment is on the information which was supplied by the Pr. DIT( which was supplied by the Pr. DIT(INV), Ahmadabad. From the reasons recorded, it does not INV), Ahmadabad. From the reasons recorded, it does not appear that verification of the material on record there is independent formation of opinion by the appear that verification of the material on record there is independent formation of opinion by the appear that verification of the material on record there is independent formation of opinion by the Assessing Officer and that any income has escaped assessment due to any failure on the part of the Assessing Officer and that any income has escaped assessment due to any failure on the part of the Assessing Officer and that any income has escaped assessment due to any failure on the part of the assessee in not disclosing truly and correct facts / material necessary for assessment. From the ssessee in not disclosing truly and correct facts / material necessary for assessment. From the ssessee in not disclosing truly and correct facts / material necessary for assessment. From the reasons recorded, it appears that the impugned reopening proceedings are on the borrowed reasons recorded, it appears that the impugned reopening proceedings are on the borrowed reasons recorded, it appears that the impugned reopening proceedings are on the borrowed satisfaction. No independent opinion is formed. On the plain reading of satisfaction. No independent opinion is formed. On the plain reading of the reasons recorded what the reasons recorded what emerges is that the Assessing Officer on considering the information received from the Pr. emerges is that the Assessing Officer on considering the information received from the Pr. emerges is that the Assessing Officer on considering the information received from the Pr. DIT(INV), Ahmadabad reassessment proceedings have been initiated on the ground that the DIT(INV), Ahmadabad reassessment proceedings have been initiated on the ground that the DIT(INV), Ahmadabad reassessment proceedings have been initiated on the ground that the income escaped assessment. However, there is no as income escaped assessment. However, there is no assertion regarding the basis on which material sertion regarding the basis on which material on record, he come to such conclusion. It cannot be disputed that on the basis of the information on record, he come to such conclusion. It cannot be disputed that on the basis of the information on record, he come to such conclusion. It cannot be disputed that on the basis of the information received from another agency, there cannot be any reassessment proceedings. However, after received from another agency, there cannot be any reassessment proceedings. However, after received from another agency, there cannot be any reassessment proceedings. However, after considering the information / material received from other source, Assessing Officer is required to mation / material received from other source, Assessing Officer is required to mation / material received from other source, Assessing Officer is required to consider the material on record in case of the assessee income and thereafter, he is required to consider the material on record in case of the assessee income and thereafter, he is required to consider the material on record in case of the assessee income and thereafter, he is required to form an independent opinion on the basis of the material on record that the inco form an independent opinion on the basis of the material on record that the inco form an independent opinion on the basis of the material on record that the income has escaped assessment. Without forming such an opinion, solely and mechanically relying upon the assessment. Without forming such an opinion, solely and mechanically relying upon the assessment. Without forming such an opinion, solely and mechanically relying upon the information received from other source, there cannot be any reassessment for the verification. At information received from other source, there cannot be any reassessment for the verification. At information received from other source, there cannot be any reassessment for the verification. At this stage, it is required to be noted that even in the r this stage, it is required to be noted that even in the reasons recorded, there is not allegation that easons recorded, there is not allegation that there was any failure on the part of the assessee in not disclosing truly and fully material facts there was any failure on the part of the assessee in not disclosing truly and fully material facts there was any failure on the part of the assessee in not disclosing truly and fully material facts necessary for assessment. Under the circumstances, the assumption of the jurisdiction to reopen necessary for assessment. Under the circumstances, the assumption of the jurisdiction to reopen necessary for assessment. Under the circumstances, the assumption of the jurisdiction to reopen the assessment beyond the period of four years in exercise of powers under beyond the period of four years in exercise of powers under section 147 section 147 of the Act is bad in law and contrary to the provisions of section 147 of the Act. Therefore, on the aforesaid bad in law and contrary to the provisions of section 147 of the Act. Therefore, on the aforesaid bad in law and contrary to the provisions of section 147 of the Act. Therefore, on the aforesaid ground alone, the impugned reassessment proceedings deserve to be quashed. ugned reassessment proceedings deserve to be quashed. ugned reassessment proceedings deserve to be quashed. 11. We note that the reasons do not indicate the basis for the Assessing Officer to come to 11. We note that the reasons do not indicate the basis for the Assessing Officer to come to 11. We note that the reasons do not indicate the basis for the Assessing Officer to come to reasonable belief that there has been any escapement of income on the ground that the reasonable belief that there has been any escapement of income on the ground that the reasonable belief that there has been any escapement of income on the ground that the modifications done in the client code was not on account of a genuine error, originally occurred he client code was not on account of a genuine error, originally occurred he client code was not on account of a genuine error, originally occurred while punching the trade. The material available is that there is a client code modification done by while punching the trade. The material available is that there is a client code modification done by while punching the trade. The material available is that there is a client code modification done by the Assessee's broker but there is no link from there to conclude that it was don the Assessee's broker but there is no link from there to conclude that it was don the Assessee's broker but there is no link from there to conclude that it was done to escape assessment of a part of its income. Prima facie, this appears to be a case of reason to suspect and assessment of a part of its income. Prima facie, this appears to be a case of reason to suspect and assessment of a part of its income. Prima facie, this appears to be a case of reason to suspect and not reason to believe that income chargeable to tax has escaped assessment. For that we rely of the not reason to believe that income chargeable to tax has escaped assessment. For that we rely of the not reason to believe that income chargeable to tax has escaped assessment. For that we rely of the judgment of the Hon`ble High Court of Bombay judgment of the Hon`ble High Court of Bombay in the case of M/s Coronation Agro Industries Ltd in the case of M/s Coronation Agro Industries Ltd Vs. DCIT, W. P. No.2627 of 2016, dated 23.11.2016, wherein it was held as under: Vs. DCIT, W. P. No.2627 of 2016, dated 23.11.2016, wherein it was held as under: Vs. DCIT, W. P. No.2627 of 2016, dated 23.11.2016, wherein it was held as under:

4 ITA No. 1653/Kol/2019 Assessment Year: 2010-11 Neeraj Umashankar Murarka 3. The reasons in support of the impugned notice relies upon the information received 3. The reasons in support of the impugned notice relies upon the information received 3. The reasons in support of the impugned notice relies upon the information received from the Principal Director of Income from the Principal Director of Income Tax that the petitioner has benefited from a client Tax that the petitioner has benefited from a client code modification by which a profit of Rs.22.50 lakhs was shifted out by the petitioner's code modification by which a profit of Rs.22.50 lakhs was shifted out by the petitioner's code modification by which a profit of Rs.22.50 lakhs was shifted out by the petitioner's broker, resulting in reduction of the petitioner's taxable income. The only basis for broker, resulting in reduction of the petitioner's taxable income. The only basis for broker, resulting in reduction of the petitioner's taxable income. The only basis for forming the belief is the r forming the belief is the report from the Principal Director of Income Tax and the eport from the Principal Director of Income Tax and the application of mind to the report of the Assessing Officer along with the record available application of mind to the report of the Assessing Officer along with the record available application of mind to the report of the Assessing Officer along with the record available with him. This information and application of mind has led the Assessing Officer to form a with him. This information and application of mind has led the Assessing Officer to form a with him. This information and application of mind has led the Assessing Officer to form a reasonable belief reasonable belief that there is not only an escapement of income but there has been failure that there is not only an escapement of income but there has been failure to truly and fully disclose all material facts and information as the modus operandi of to truly and fully disclose all material facts and information as the modus operandi of to truly and fully disclose all material facts and information as the modus operandi of shifting profits was not known to the Revenue as not disclosed by the petitioner when the shifting profits was not known to the Revenue as not disclosed by the petitioner when the shifting profits was not known to the Revenue as not disclosed by the petitioner when the Assessing Officer passed the order in regular assessment proceedings. ssing Officer passed the order in regular assessment proceedings. ssing Officer passed the order in regular assessment proceedings. 4. We note that the reasons in support of the impugned notice accept the fact that as a 4. We note that the reasons in support of the impugned notice accept the fact that as a 4. We note that the reasons in support of the impugned notice accept the fact that as a matter of regular business practice, a broker in the stock exchange makes modifications in matter of regular business practice, a broker in the stock exchange makes modifications in matter of regular business practice, a broker in the stock exchange makes modifications in the client code on sale and / or purchase of any securities, after the trading is over so as to code on sale and / or purchase of any securities, after the trading is over so as to code on sale and / or purchase of any securities, after the trading is over so as to rectify any error which may have occurred while punching the orders. The reasons do not rectify any error which may have occurred while punching the orders. The reasons do not rectify any error which may have occurred while punching the orders. The reasons do not indicate the basis for the Assessing Officer to come to reasonable belief that the indicate the basis for the Assessing Officer to come to reasonable belief that the indicate the basis for the Assessing Officer to come to reasonable belief that there has been any escapement of income on the ground that the modifications done in the client code any escapement of income on the ground that the modifications done in the client code any escapement of income on the ground that the modifications done in the client code was not on account of a genuine error, originally occurred while punching the trade. The was not on account of a genuine error, originally occurred while punching the trade. The was not on account of a genuine error, originally occurred while punching the trade. The material available is that there is a client code modification done b material available is that there is a client code modification done by the Assessee's broker y the Assessee's broker but there is no link from there to conclude that it was done to escape assessment of a part but there is no link from there to conclude that it was done to escape assessment of a part but there is no link from there to conclude that it was done to escape assessment of a part of its income. Prima facie, this appears to be a case of reason to suspect and not reason to of its income. Prima facie, this appears to be a case of reason to suspect and not reason to of its income. Prima facie, this appears to be a case of reason to suspect and not reason to believe that income chargeable to tax has escap believe that income chargeable to tax has escaped assessment. 5. In the above view, prima facie, we are of the view that the impugned notice is without 5. In the above view, prima facie, we are of the view that the impugned notice is without 5. In the above view, prima facie, we are of the view that the impugned notice is without jurisdiction as it lacks reason to believe that income chargeable to tax has escaped jurisdiction as it lacks reason to believe that income chargeable to tax has escaped jurisdiction as it lacks reason to believe that income chargeable to tax has escaped assessment." 12.Our view is fortified by the judgment of the Co 12.Our view is fortified by the judgment of the Co-ordinate Bench ITAT, Kolkata, on the similar ordinate Bench ITAT, Kolkata, on the similar facts, in the case of Naveen Bhattar vs.ACIT Naveen Bhattar vs.ACIT in I.T.A. No. 2377/Kol/2017 wherein it was held as in I.T.A. No. 2377/Kol/2017 wherein it was held as follows: 7. This Bench of the Tribunal in the case of 7. This Bench of the Tribunal in the case of M/s. Cygnus Investments & Finance Pvt. Ltd v. M/s. Cygnus Investments & Finance Pvt. Ltd v. Assistant Commissioner of Income Tax, Central Circle Assistant Commissioner of Income Tax, Central Circle 3(3), Kolkata I.T.A. No. 3(3), Kolkata I.T.A. No. 117/Kol/2018 Assessment Year: 2008 117/Kol/2018 Assessment Year: 2008-09; order dt. 18th May, 2018, held as follows: 09; order dt. 18th May, 2018, held as follows:- "7. Further a perusal of the reasons recorded shows non "7. Further a perusal of the reasons recorded shows non- application of mind by application of mind by the Assessing Officer. Directions have been given by the DDIT (Inv.) Unit the Assessing Officer. Directions have been given by the DDIT (Inv.) Unit the Assessing Officer. Directions have been given by the DDIT (Inv.) Unit-2(1), Kolkata, vide communication cited in the reasons recorded and based on such Kolkata, vide communication cited in the reasons recorded and based on such Kolkata, vide communication cited in the reasons recorded and based on such directions, the reop directions, the reopening was done. The Hon'ble Delhi High Court in the case of ening was done. The Hon'ble Delhi High Court in the case of Commissioner of Income Commissioner of Income-tax, IV v. Insecticides (India) Ltd [2013] 357 ITR 330 (Delhi) upheld the order of the ITAT Delhi Bench in ITA Nos. 2332 (Delhi) upheld the order of the ITAT Delhi Bench in ITA Nos. 2332 (Delhi) upheld the order of the ITAT Delhi Bench in ITA Nos. 2332- 2333/Del/2010, holding as follows: 2333/Del/2010, holding as follows:- "7. We may point out at this juncture itself that the Tribunal did not go into the "7. We may point out at this juncture itself that the Tribunal did not go into the "7. We may point out at this juncture itself that the Tribunal did not go into the question of merits. It only examined the question of the validity of the proceedings question of merits. It only examined the question of the validity of the proceedings question of merits. It only examined the question of the validity of the proceedings under Section 147 of the said Act. The Tribunal, under Section 147 of the said Act. The Tribunal, in essence, held that the in essence, held that the purported reasons for reopening the assessments were entirely vague and devoid purported reasons for reopening the assessments were entirely vague and devoid purported reasons for reopening the assessments were entirely vague and devoid of any material. As such, on the available material, no reasonable person could of any material. As such, on the available material, no reasonable person could of any material. As such, on the available material, no reasonable person could have any reason to believe that income had escaped assessment. Conseque have any reason to believe that income had escaped assessment. Conseque have any reason to believe that income had escaped assessment. Consequently, the Tribunal held that the proceedings under Section 147 of the said Act were the Tribunal held that the proceedings under Section 147 of the said Act were the Tribunal held that the proceedings under Section 147 of the said Act were invalid. 8. The Tribunal gave detailed reasons for concluding that the proceedings under 8. The Tribunal gave detailed reasons for concluding that the proceedings under 8. The Tribunal gave detailed reasons for concluding that the proceedings under Section 147 were invalid. Instead of adding anything to the said reasons, we think Section 147 were invalid. Instead of adding anything to the said reasons, we think Section 147 were invalid. Instead of adding anything to the said reasons, we think it would be appropriate if the same are reproduced: it would be appropriate if the same are reproduced:-- "In the case at hand, as is seen from the reasons recorded by the AO, we find that "In the case at hand, as is seen from the reasons recorded by the AO, we find that "In the case at hand, as is seen from the reasons recorded by the AO, we find that the AO has merely stated that it has been informed by the Director of Income the AO has merely stated that it has been informed by the Director of Income the AO has merely stated that it has been informed by the Director of Income-tax (Inv.), New Delhi, vide letter dated (Inv.), New Delhi, vide letter dated 16.06.2006 that the above named company 16.06.2006 that the above named company was involved in giving and taking bogus entries/transactions during the relevant was involved in giving and taking bogus entries/transactions during the relevant was involved in giving and taking bogus entries/transactions during the relevant

5 ITA No. 1653/Kol/2019 Assessment Year: 2010-11 Neeraj Umashankar Murarka year, which is actually unexplained income of the assessee company. The AO has year, which is actually unexplained income of the assessee company. The AO has year, which is actually unexplained income of the assessee company. The AO has further stated that the assessee company has failed to d further stated that the assessee company has failed to disclose fully and truly all isclose fully and truly all material facts and source of these funds routed through bank account of the material facts and source of these funds routed through bank account of the material facts and source of these funds routed through bank account of the assessee company. In the reasons recorded, it is nowhere mentioned as to who assessee company. In the reasons recorded, it is nowhere mentioned as to who assessee company. In the reasons recorded, it is nowhere mentioned as to who had given bogus entries/transactions to the assessee or to whom the assesse had given bogus entries/transactions to the assessee or to whom the assesse had given bogus entries/transactions to the assessee or to whom the assessee had given bogus entries or transactions. It is also nowhere mentioned as to on which given bogus entries or transactions. It is also nowhere mentioned as to on which given bogus entries or transactions. It is also nowhere mentioned as to on which dates and through which mode the bogus entries and transactions were made by dates and through which mode the bogus entries and transactions were made by dates and through which mode the bogus entries and transactions were made by the assessee. What was the information given by the Director of Income the assessee. What was the information given by the Director of Income the assessee. What was the information given by the Director of Income-tax (Inv.), New Delhi New Delhi, vide letter dated 16.06.2006 has also not been mentioned. In other , vide letter dated 16.06.2006 has also not been mentioned. In other words, the contents of the letter dated 16.06.2006 of the Director of Income words, the contents of the letter dated 16.06.2006 of the Director of Income words, the contents of the letter dated 16.06.2006 of the Director of Income-tax (Inv.), New Delhi have not been given. The AO has vaguely referred to certain (Inv.), New Delhi have not been given. The AO has vaguely referred to certain (Inv.), New Delhi have not been given. The AO has vaguely referred to certain communications that he had r communications that he had received from the DIT(Inv.), New Delhi; the AO did eceived from the DIT(Inv.), New Delhi; the AO did not mention the facts mentioned in the said communication except that from the not mention the facts mentioned in the said communication except that from the not mention the facts mentioned in the said communication except that from the informations gathered by the DIT (Inv.), New Delhi that the assessee was involved informations gathered by the DIT (Inv.), New Delhi that the assessee was involved informations gathered by the DIT (Inv.), New Delhi that the assessee was involved in giving and taking accommodation entries on in giving and taking accommodation entries only and represented unsecured ly and represented unsecured money of the assessee company is actually unexplained income of the assessee money of the assessee company is actually unexplained income of the assessee money of the assessee company is actually unexplained income of the assessee company or that it has been informed by the Director of Income company or that it has been informed by the Director of Income company or that it has been informed by the Director of Income-tax (Inv.), New Delhi vide letter dated 16.06.2006 that the assessee company was involv Delhi vide letter dated 16.06.2006 that the assessee company was involv Delhi vide letter dated 16.06.2006 that the assessee company was involved in giving and taking bogus entries/transactions during the relevant financial year. giving and taking bogus entries/transactions during the relevant financial year. giving and taking bogus entries/transactions during the relevant financial year. The AO did not mention the details of transactions that represented unexplained The AO did not mention the details of transactions that represented unexplained The AO did not mention the details of transactions that represented unexplained income of the assessee company. The information on the basis of which the AO income of the assessee company. The information on the basis of which the AO income of the assessee company. The information on the basis of which the AO has initiate has initiated proceedings u/s 147 of the Act are undoubtedly vague and uncertain d proceedings u/s 147 of the Act are undoubtedly vague and uncertain and cannot be construed to be sufficient and relevant material on the basis of and cannot be construed to be sufficient and relevant material on the basis of and cannot be construed to be sufficient and relevant material on the basis of which a reasonable person could have formed a belief that income had escaped which a reasonable person could have formed a belief that income had escaped which a reasonable person could have formed a belief that income had escaped assessment. In other words, the assessment. In other words, the reasons recorded by the AO are totally vague, reasons recorded by the AO are totally vague, scanty and ambiguous. They are not clear and unambiguous but suffer from scanty and ambiguous. They are not clear and unambiguous but suffer from scanty and ambiguous. They are not clear and unambiguous but suffer from vagueness. The reasons recorded by the AO do not disclose the AO's mind as to vagueness. The reasons recorded by the AO do not disclose the AO's mind as to vagueness. The reasons recorded by the AO do not disclose the AO's mind as to what was the nature and amount of transaction or entries, what was the nature and amount of transaction or entries, which had been given which had been given or taken by the assessee in the relevant year. The reasons recorded by the AO also or taken by the assessee in the relevant year. The reasons recorded by the AO also or taken by the assessee in the relevant year. The reasons recorded by the AO also do not disclose his mind as to when and in what mode or way the bogus entries or do not disclose his mind as to when and in what mode or way the bogus entries or do not disclose his mind as to when and in what mode or way the bogus entries or transactions were given or taken by the assessee. From the reasons reco transactions were given or taken by the assessee. From the reasons reco transactions were given or taken by the assessee. From the reasons recorded, nobody can know what was the amount and nature of bogus entries or nobody can know what was the amount and nature of bogus entries or nobody can know what was the amount and nature of bogus entries or transactions given and taken by the assessee in the relevant year and with whom transactions given and taken by the assessee in the relevant year and with whom transactions given and taken by the assessee in the relevant year and with whom the transaction had taken place. As already noted above, it is well settled that the transaction had taken place. As already noted above, it is well settled that the transaction had taken place. As already noted above, it is well settled that only the reasons recor only the reasons recorded by the AO for initiating proceedings u/s 147 of the Act ded by the AO for initiating proceedings u/s 147 of the Act are to be looked at or examined for sustaining or setting aside a notice issued u/s are to be looked at or examined for sustaining or setting aside a notice issued u/s are to be looked at or examined for sustaining or setting aside a notice issued u/s 148 of the Act. The reasons are required to be read as they were recorded by the 148 of the Act. The reasons are required to be read as they were recorded by the 148 of the Act. The reasons are required to be read as they were recorded by the AO. No substitution or deletion AO. No substitution or deletion is permissible. No addition can be made to those is permissible. No addition can be made to those reasons. Therefore, the details of entries or amount mentioned in the assessment reasons. Therefore, the details of entries or amount mentioned in the assessment reasons. Therefore, the details of entries or amount mentioned in the assessment order and in respect of which ultimate addition has been made by the AO, cannot order and in respect of which ultimate addition has been made by the AO, cannot order and in respect of which ultimate addition has been made by the AO, cannot be made a basis to say that the reasons recor be made a basis to say that the reasons recorded by the AO were with reference to ded by the AO were with reference to those amounts mentioned in the assessment order. The reasons recorded by the those amounts mentioned in the assessment order. The reasons recorded by the those amounts mentioned in the assessment order. The reasons recorded by the AO are totally silent with regard to the amount and nature of bogus entries and AO are totally silent with regard to the amount and nature of bogus entries and AO are totally silent with regard to the amount and nature of bogus entries and transactions and the persons with whom the transactions had ta transactions and the persons with whom the transactions had ta transactions and the persons with whom the transactions had taken place. In this respect, we may rely upon the decision of Hon'ble jurisdictional Delhi High Court respect, we may rely upon the decision of Hon'ble jurisdictional Delhi High Court respect, we may rely upon the decision of Hon'ble jurisdictional Delhi High Court in the case of in the case of CIT v. Atul Jain [2000] 299 ITR 383, in which case the information [2000] 299 ITR 383, in which case the information relied upon by the AO relied upon by the AO for initiating proceedings u/s 147 of the Act did indicate for initiating proceedings u/s 147 of the Act did indicate the source of the capital gain and nobody knew which shares were transacted the source of the capital gain and nobody knew which shares were transacted the source of the capital gain and nobody knew which shares were transacted and with whom the transaction has taken place and in that case there were and with whom the transaction has taken place and in that case there were and with whom the transaction has taken place and in that case there were absolutely no details available and the inform absolutely no details available and the information supplied was extremely ation supplied was extremely scanty and vague and in that light of those facts, the Hon'ble Jurisdictional Delhi scanty and vague and in that light of those facts, the Hon'ble Jurisdictional Delhi scanty and vague and in that light of those facts, the Hon'ble Jurisdictional Delhi High Court held that initiation of proceedings u/s 147 of the Act by the AO was High Court held that initiation of proceedings u/s 147 of the Act by the AO was High Court held that initiation of proceedings u/s 147 of the Act by the AO was not valid and justified in the eyes of law. The recent decision not valid and justified in the eyes of law. The recent decision not valid and justified in the eyes of law. The recent decision of Hon'ble jurisdictional High Court of Delhi in the case of Signature Hotels (P.) Ltd. (supra) jurisdictional High Court of Delhi in the case of Signature Hotels (P.) Ltd. (supra) jurisdictional High Court of Delhi in the case of Signature Hotels (P.) Ltd. (supra) also supports the view we have taken above." also supports the view we have taken above." 9. We do not see any reason to differ with the view expressed by the Tribunal. No 9. We do not see any reason to differ with the view expressed by the Tribunal. No 9. We do not see any reason to differ with the view expressed by the Tribunal. No substantial question of law ari substantial question of law arises for our consideration. The appeals are ses for our consideration. The appeals are dismissed. There shall be no order as to costs. dismissed. There shall be no order as to costs.

6 ITA No. 1653/Kol/2019 Assessment Year: 2010-11 Neeraj Umashankar Murarka 8.Respectfully following the propositions of law laid down in the judgments cited 8.Respectfully following the propositions of law laid down in the judgments cited 8.Respectfully following the propositions of law laid down in the judgments cited above to the facts of the case, we have no other alternative but to hold that the above to the facts of the case, we have no other alternative but to hold that the above to the facts of the case, we have no other alternative but to hold that the reopening of the assessments is bad in law." reopening of the assessments is bad in law." 8. Applying the propositions of law laid down by the Tribunal in the above referred case 8. Applying the propositions of law laid down by the Tribunal in the above referred case 8. Applying the propositions of law laid down by the Tribunal in the above referred case- law to the facts of the case on hand, I hold that the re law to the facts of the case on hand, I hold that the re-opening is bad in law. Accordingly, opening is bad in law. Accordingly, the re-assessment is quashed assessment is quashed." 13. Therefore, considering the above facts and circumstances of the case and taking into account 13. Therefore, considering the above facts and circumstances of the case and taking into account 13. Therefore, considering the above facts and circumstances of the case and taking into account the precedents cited above, we note that the reopening of the assessee's case u/s 147/148 of the the precedents cited above, we note that the reopening of the assessee's case u/s 147/148 of the the precedents cited above, we note that the reopening of the assessee's case u/s 147/148 of the Act, is bad in law and accordingly the reassessment is qua Act, is bad in law and accordingly the reassessment is quashed. As we have held so, we do not shed. As we have held so, we do not adjudicate the appeal of the assessee on merits.” adjudicate the appeal of the assessee on merits.” 5. Consistent with the view taken therein, I hold that the reopening is bad in law Consistent with the view taken therein, I hold that the reopening is bad in law Consistent with the view taken therein, I hold that the reopening is bad in law, for these very reasons. 6. In the result, appeal of the assessee is allowed. In the result, appeal of the assessee is allowed. Kolkata, Kolkata, the 15th day of January, 2020. Sd/- [J. Sudhakar Reddy] Accountant Member Dated : 15.01.2020 {SC SPS} Copy of the order forwarded to: 1. Neeraj Umashankar Murarka Neeraj Umashankar Murarka C/o Shri Jitendra Kaushik, Advocate Kaushik, Advocate 19D, Muktaram Babu Street Kolkata – 700 007