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2022 (10) TMI 1154 - AT - Income TaxValidity of Reopening of assessment u/s 147 - mistake of noting section under section 147(b) of the Act for reassessment proceeding - non-application of mind by the AO while filling proforma in a mechanical manner - whether the mention of non-existent provision of section 147(b) of the Act is a clerical mistake which is curable u/s 292B? - HELD THAT - AO, in the first page of reasons mentioned in column 7 that provisions of section 147(b) is applicable which is non-existent in the statute book for AY 2010-11. This apparently shows non-application of mind by the AO while filling proforma in a mechanical manner and the ld. ACIT and Ld. PCIT also approved the same in a mechanical manner. So far as the contention of the ld. Sr. DR that this defect is curable u/s 292B of the Act is concerned, this contention was decided by the ITAT Delhi Bench in the case of Madhu Apartments India Pvt. Ltd 2021 (2) TMI 709 - ITAT DELHI the relevant part of which has already been reproduced in the earlier part of this order since the same was referred to and included in the relevant part of the order of the ITAT in the case of Omkam Developers Ltd. ( 2021 (5) TMI 414 - ITAT DELHI ). Therefore, we hold that the impugned reassessment proceedings and the impugned reassessment order deserves to be quashed and hold so. - Decided in favour of assessee.
Issues Involved:
1. Validity of reassessment proceedings based on non-existing provisions of law. 2. Applicability of section 153C of the IT Act. 3. Initiation of proceedings at the behest of another authority. 4. Assumption of jurisdiction by issuing notice under section 143(2) on the date of supplying reasons. 5. Mechanical approval granted by the Principal Commissioner of Income Tax (Pr. CIT). 6. Assumption of jurisdiction based on invalid issuance of notice under section 148. Detailed Analysis: 1. Validity of Reassessment Proceedings Based on Non-Existing Provisions of Law: The appellant challenged the reassessment proceedings on the grounds that the Assessing Officer (AO) invoked non-existing provisions of law, specifically section 147(b) which ceased to exist from 01.04.1989. This was argued as a clear case of non-application of mind by the AO and the approving authorities under section 151. The Tribunal agreed with the appellant, referencing multiple cases including Smt. Kalpana Shantilal Haria vs. ACIT and Best Cybercity India P. Ltd vs. ITO, which supported the argument that invoking non-existent sections invalidates the reassessment proceedings. 2. Applicability of Section 153C of the IT Act: The appellant argued that the jurisdiction under section 147 was wrongly assumed based on incriminating documents found during a search on third parties (Sh. S.K. Jain and his brothers). It was contended that section 153C should have been invoked instead, as it specifically deals with material seized from third parties. The Tribunal noted that the AO had no independent material to initiate action under section 147, and the reassessment proceedings should have been conducted under section 153C. This was supported by recent decisions in similar cases such as M/s City Life Projects P Ltd and M/s. Saurashtra Color Tones Pvt. Ltd. v. ITO. 3. Initiation of Proceedings at the Behest of Another Authority: The appellant contended that the reassessment proceedings were initiated based on directions from the DDIT Investigation and CIT, which is against the provisions of section 147 that require the AO's independent satisfaction. The Tribunal referenced cases like CIT v. SPL's Siddhartha Ltd. and Munjal Showa Ltd vs Dy CIT, which held that reassessment proceedings initiated at the behest of another authority are invalid. 4. Assumption of Jurisdiction by Issuing Notice Under Section 143(2) on the Date of Supplying Reasons: The appellant argued that the AO issued a notice under section 143(2) on the same date the reasons for reassessment were provided, thereby denying the appellant the opportunity to file objections. The Tribunal cited the Gujarat High Court's decision in Sahkari Khand Udyog Mandal Ltd. vs. ACIT, which mandates that reasons must be provided to the assessee within 30 days, allowing 60 days for objections. The Tribunal agreed that issuing the notice simultaneously with providing reasons was a procedural irregularity that invalidated the reassessment proceedings. 5. Mechanical Approval Granted by the Principal Commissioner of Income Tax (Pr. CIT): The appellant argued that the approval for reassessment was granted mechanically without proper application of mind. The Tribunal found that the Pr. CIT merely noted "yes" for approval without any substantive reasoning, which amounted to a mechanical approval. This was supported by the Delhi High Court's decision in NC Cable Ltd and the Tribunal's decision in Madhu Apartment Private Limited vs. ITO, which held that such mechanical approvals invalidate reassessment proceedings. 6. Assumption of Jurisdiction Based on Invalid Issuance of Notice Under Section 148: The appellant contended that the notice under section 148 was issued in the name of the artificial juridical entity without addressing the principal officer, making it invalid. The Tribunal referenced cases like Rama Devi Agrawal vs. CIT and Madan Lai Agrawal vs. CIT, which held that notices must be correctly addressed to be valid. The Tribunal agreed with the appellant that the notice was invalid. Conclusion: The Tribunal quashed the reassessment proceedings and the reassessment order on the grounds of non-application of mind by the AO and the approving authorities, mechanical approval by the Pr. CIT, and procedural irregularities in issuing notices. Consequently, all additions made by the AO were held unsustainable, rendering other grounds of appeal academic and infructuous. The appeal filed by the assessee was allowed.
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