Case Law Details
In this case The reasons for reopening the assessment have been set out in an office note which has been extracted in para 28 of the impugned order of the ITAT. This office note was apparently prepared by the AO at the time of finalizing the initial assessment. It reads as under:
“Office Note
The assessment is completed after detailed discussion with the Additional CIT, R-ll, New Delhi who guided me to make a reference to the F.T.D. Branch to ascertain the genuineness of these NRI gifts. Also make reference to the valuation cell to ascertain the correct value of the assets for Health Tax Purposes. It has been observed that the Assessee has received huge gifts from N RI’s last year relevant to the Asst. Year 1993-94, the gift received have been declared Rs. 6,75,000 and in this year he has shown at Rs. 5,65,000 investigations were made from the banks and it was found that during the year under consideration has received the following gifts either in the name of himself and or in the name of his family members.”
Below the office note, list of 16 donors has been set out. The office note states that in order to verify the genuineness of the gifts and to scrutinize the corresponding entries in their books of account in their respective countries, a detailed letter has been sent to the FTD Branch of the CBDT. It is, in that context, stated that “if anything achieve received from the FTD (Foreign Tax Division) Branch the assessment shall be reopened”. In other words, the reopening of the assessment was made contingent upon some material being received from the FTD. It is not denied by the Revenue that till date no such adverse material qua the Assessee has been received from the FTD.
In the absence of any material, as anticipated by the AO in the office note, it is difficult to appreciate on what basis the AO could form the “reasons to believe”, that for the AY in question any income has escaped assessment. What seems to have been overlooked by the CIT (A) as well as the ITAT is that the original assessment was framed after detailed questionnaires were sent to the Assessee and replies furnished by him thereto giving the details of all the donors as well as their affidavits. These were examined by the AO. The mere fact that the AO may not have mentioned in the assessment order that the above exercise was undertaken need not mean that he did not pay attention to the materials before him. There was no warrant for the ITAT to have drawn such presumption. In fact the affidavits of the donors coupled with the confirmation letters of the Bank, as noted hereinabove, were materials touching upon the aspects of genuineness of the identity of the donors. Unless there was material which controverted the said documents produced by the Assessee in the form of the report of the FTD, it could not be said that there was any adverse material which could justify the formation of ‘reasons of believe’ within the meaning of Section 147/148 of the Act for reopening the assessment.
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