2021 (12) TMI 256 - AT - Income Tax

Penalty u/s 271(1)(c) - Reopening of assessment u/s 147 - addition of unexplained investment in property u/s 69 - jurisdiction of ITO initiating the reopening - HELD THAT - As it is admitted fact that ITO Ward-4 Phagwara, had no Jurisdiction over the case who has recorded the reasons and issued the notice u/s 148 and thereafter transferred the file to the Jurisdictional ITO i.e. Ward-2 Phagwara who in turn framed the assessment. The issue of jurisdiction in this regard is now settled law by orders of the Amritsar Bench, Agra Bench, Chandigarh Bench and Delhi Bench of ITAT where it has been held that firstly the AO who records the reasons and issues a notice u/s 148 should be a Jurisdictional AO and secondly the assessment also has to be framed by the same AO who initiated the proceedings u/s 147, 148. In our view, the assessment order passed by the ITO, Ward-2, Phagwara is without jurisdiction and the same is not in accordance with law, hence required to be quashed. The finding of the Ld. CIT(A) on the issue of jurisdiction and thereby confirming the assessment order are unwarranted and perverse and such a finding against the settled position of law can not be approved. We accept the grievance of the assessee genuine. We hereby quash the assessment order and the impugned order of the CIT(A) for the aforesaid reasons. The consequential penalty order u/s 271(1)(c) would become infructuous in view of dismissal of quantum appeal. - Decided in favour of assessee.

Summary

Issues involved:
1. Jurisdictional grounds for reassessment proceedings u/s 147/148 of Income Tax Act.
2. Compliance with notice requirements u/s 148 and u/s 143(2) & 142(1).
3. Addition of unexplained investment in property u/s 69/69A.
4. Sustaining of penalty u/s 271(1)(c) without proper opportunity and notice.

Jurisdictional Grounds for Reassessment Proceedings (Issue 1):
The appeals were directed against the order of the Ld. Commissioner of Income Tax (Appeals) confirming the addition and consequential penalty u/s 271(1)(c) of the Act for Assessment Year 2009-10. The appellant raised grounds challenging the initiation of reassessment proceedings u/s 147/148, jurisdiction of the assessing officer, and non-service of notices. The Ld. Counsel argued that the assessing officer issuing the notice u/s 148 should have jurisdiction and authority to frame the assessment u/s 143/147. The Tribunal noted settled law that the assessing officer initiating proceedings must have jurisdiction and must also frame the assessment. It was held that the assessment order by an assessing officer lacking jurisdiction is invalid, leading to the quashing of the assessment and the CIT(A)'s decision.

Compliance with Notice Requirements (Issue 2):
The appellant contended that no notice u/s 148, 143(2), and 142(1) was served upon them. The assessing officer had issued notices, but the appellant, being a British Citizen residing in England, claimed non-receipt. The Tribunal observed that non-compliance with notice requirements affects the validity of proceedings. The failure to serve notices undermined the assessment process, leading to the quashing of the assessment order.

Addition of Unexplained Investment in Property (Issue 3):
The assessing officer made an addition of &8377; 79,60,000 as unexplained investment in property u/s 69/69A based on information regarding a land purchase. The CIT(A) confirmed the addition, citing lack of evidence on the source of investment. The appellant submitted affidavits, but the CIT(A) found them self-serving and unreliable. The Tribunal upheld the addition, emphasizing that legal documents indicated cash receipt for the property sale, discrediting the appellant's claims. The Tribunal found the appellant failed to substantiate the source of investment, leading to the confirmation of the addition.

Sustaining of Penalty u/s 271(1)(c) (Issue 4):
The appellant challenged the penalty u/s 271(1)(c) levied by the assessing officer, alleging lack of proper opportunity and notice. The CIT(A) upheld the penalty without considering the appellant's explanations. The Tribunal noted the appellant's argument that both authorities failed to appreciate the explanations provided. The Tribunal found the penalty unsustainable due to procedural irregularities and lack of proper opportunity, leading to the allowance of the appellant's appeal.

In conclusion, the Tribunal allowed both appeals of the assessee, quashing the assessment order and penalty due to jurisdictional issues, non-compliance with notice requirements, and lack of proper opportunity in penalty proceedings.