2018 (6) TMI 361 - AT - Income Tax

Scrutiny assessment - Notice u/s 143(2) not served within the statutory period specified - Held that - Without any discussion on this issue of limitation, the Ld. CIT(A)-2, Kolkata allowed ground no.1 of the assessee before him, which states that the notice u/s 143(2) of the Act was not served as the assessee within the statutory period specified under law. Hence this order is passed without application of mind. Even on the merits of the case, the developments in law on the subject and the latest orders of the Tribunal and latest judgments of the courts have not been considered by the Ld. CIT(A). Hence, we are unable to uphold this order of the Ld. CIT(A). CIT(A) has passed a mechanical order without considering the legal position and the facts of the case as brought out by the AO. Thus we set aside this appeal to the file of the AO for fresh adjudication and in accordance with law, after giving the assessee adequate opportunity of being heard.

Summary

Issues:
1. Appeal against order of Commissioner of Income Tax (Appeals) under section 143(3) for the assessment year 2012-13.
2. Addition under section 68 of the Income Tax Act on share capital raised by the assessee.
3. Validity of passing order under section 143(3) due to notice served beyond statutory date.
4. Lack of opportunity and independent enquiry by assessing officer.
5. Guidelines issued by the Commissioner for conducting deep investigation.
6. Setting aside the appeal to the Assessing Officer for fresh adjudication.

Analysis:
1. The appeal was directed against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2012-13 under section 143(3) of the Income Tax Act. The assessee, a company, raised share capital during the previous year, leading to an addition under section 68 of the Act. The first appellate authority granted relief and deleted the addition, prompting the revenue to appeal.

2. The main contention revolved around the validity of passing the order under section 143(3) due to the notice served beyond the statutory date. The Commissioner allowed the ground stating the notice was not served within the specified period, but the Appellate Tribunal found this decision lacking in proper consideration of legal developments and latest judgments, leading to setting aside the order.

3. Concerns were raised regarding the lack of opportunity and independent enquiry by the assessing officer. The Tribunal noted that the assessing officer did not provide adequate opportunity and passed the order without proper inquiry, emphasizing the importance of fair procedures in such cases.

4. The Tribunal referred to guidelines issued by the Commissioner for conducting deep investigations in similar cases. It highlighted the need for thorough examination to determine the identity, genuineness, and creditworthiness of share subscribers, emphasizing the importance of following investigative guidelines in such matters.

5. Ultimately, the Tribunal set aside the appeal to the Assessing Officer for fresh adjudication in accordance with the law. Citing similar orders in other cases, the Tribunal emphasized the need for proper consideration of evidence, fair opportunity for the assessee to be heard, and adherence to legal procedures in deciding the matter afresh.

6. In conclusion, the appeal of the revenue was allowed for statistical purposes, and the matter was remanded back to the Assessing Officer for fresh adjudication, ensuring proper procedures and fair opportunities for the assessee in line with legal requirements and precedents.