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TMI Blog2012 (12) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... la all dated 29.10.2007 relating to assessment years 1999-2000, 2000-2001 and 2002 - 03 against the order passed u/s 144/147 of the Income Tax Act, 1961 ( in short the Act ). The assessee has filed Cross Objections against the appeals filed by the Revenue. 2. Both the appeals filed by the Revenue and the Cross Objections filed by the assessee were heard together and are being disposed off by this consolidated order for the sake of convenience. 3 . Common grounds of appeal have been raised by the Revenue in all the appeals which read as under : "1. On the facts and in the circumstances of the case, the learned CIT(A) erred in quashing the assessment made u/s 147 of the Income Tax Act on the ground that the notice u/s 148 had been issued on the basis of the order u/s 263 passed by the CJT for another year, and such order u/s 263 had been cancelled by the Hon'ble ITAT, ignoring the fact that on the date of issue of notice u/s 148 there was sufficient material on record, including the said order u/s 263, for the A.O. to form a reasonable belief that income chargeable to tax had escaped assessment by virtue of excess deduction allowed u/s 80fA." "2. Without prejudice to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings under section 147 of the Act as well as completed the assessment, had no jurisdiction over the case of the assessee, (b) That the Ld. ITO failed to refer, the issue pertaining to his (the ITO) jurisdiction over the case of the assessee, to the Hon'ble Commissioner of Income Tax, as provided/required by section 124 of the Act, And therefore, the impugned assessment order dated 31-07-2006 passed by the Ld. ITO is without jurisdiction, bad in law, null and void ab-intio and deserves to be annulled. 5. Notice under section 148 (a) That the ld. ITO erred on facts and in law in completing the assessment without issue of proper and valid notice under section 148 of the Act, which is sine qua non for assumption of valid jurisdiction under section 147 of the Act. (b) That the notice issued under section 148 of the Act (1) was not issued in accordance with law, and (2) was not addressed to 'the member of the firm', as required by section 282(2)(a) of the Act, And therefore the assessment made is bad in law, null and void ab-intio and deserves to be annulled. 6. That the Ld. ITO erred in framing the assessment under section 144 of the Act, particularly without prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flating the sales, and particularly without specifying any such item and quantifying the same, and without any material or evidence on record in support thereof, It is, therefore, most humbly prayed that your honour may kindly be pleased to hold: (a) that the Ld. ITO erred in estimating the net profit at Rs. 81,860 being 2% of sales, and (b) that Rs. 32,43,963 are profits from business of manufacturing at Baddi, HP. 10. Income from other sources That the Ld ITO erred in assessing Rs. 31,62,103 as income from other sources merely on the ground that the profits of the business cannot be more than 2%. 11. Depreciation That the Ld. ITO erred in holding that depreciation is mandatory and has to be allowed irrespective of whether the assessee claims it or not. 12. Short term capital gains (a) That the Ld ITO erred in assessing Rs. 20,27,735 as short term capital gains arising on alleged transfer of land and building, (b) That the Ld ITO erred in computing the capital gains on the basis of revalued value of the assets without appreciating that by mere revaluation and book entry no income / capital gains arises, (c) That the Ld ITO erred in applying the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared on behalf of the assessee nor any application was moved for adjournment. We proceed to dispose of the present appeals and the Cross Objections after hearing the learned D.R. for the Revenue . 6. It was pointed out by the learned D.R. for the Revenue that the order under section 263 of the Act was passed by the Commissioner of Income Tax in the case of the assessee relating to assessment year 2001-02. The said order was held to be invalid by the Tribunal vide its order dated 13.8.2007. The Assessing Officer also initiated proceedings for re - assessment under section 147/148 of the Act in the case of the assessee relating to assessment years 1998-99 to 2000-01 and 2002-03. The learned D.R. for the Revenue further brought to our notice that the appeal of the assessee against the initiation of re-assessment proceedings under section 147/148 of the Act and service of notice under section 143(2) of the Act relating to assessment year 1998-99 has been decided by the Chandigarh Bench of the Tribunal vide order dated 24.5.2012 and the appeals involving similar issues as raised in the Cross Objections filed by the assessee, have been remitted back to the file of the CIT (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiating proceedings under section 147 of the Act have also been challenged. The assessee is also aggrieved by the order of the Assessing Officer in framing the assessment under section 144 of the Act without proper service of the notice. The assessee has raised various grounds of appeal against the non-allowance of the deduction under section 80IA of the Act and other grounds of assessability of income from other sources, allowance of depreciation and assessability of short term capital gains. 10. The Revenue is in appeal against the order of CIT (Appeals) under which the notice issued under section 148 of the Act was held to be non - justified as the very basis for issuing the notice under section 148 of the Act i.e.the order passed under section 263 of the Act relating to assessment year 2001-02 has been cancelled by the Tribunal. 11. The facts relating to the issue are that the assessment relating to assessment year 2001-02 was completed under section 143(3) of the Act. There after the Commissioner of Income Tax passed the order of revision under section 263 of the Act dated 18.1.2005. The said order passed under section 263 of the Act was challenged by the assessee before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. Further issue raised by the assessee was with regard to the service of notice under sections 148 and 143(2) of the Act. There after the assessee has raised the grounds of appeals against non-allowance of deduction under section 80IA of the Act on various accounts. The Tribunal in ITA No .306/Ch d/ 2006 relating to assessment year 1998-99 vide order dated 24.5.2012 has remitted the issue back to the file of the CIT (Appeals) with the direction to decide the appeal afresh on merits in accordance with law after affording due and reasonable opportunity of being heard to the assessee. The issue raised in the present appeals filed by the Revenue and the Cross Objections raised by the assessee are identical to the issues raised in assessment year 1998-99, which is first year of challenging the claim of deduction under section 80IA of the Act. The assessee in the said appeal has raised objection against both the issue of notice under section 148 of the Act and non issue of notice under section 143(2) of the Act. Similar issues have been raised by the assessee in the captioned appeals slated before us. In view of the similar issues being raised by the assessee in assessment yea r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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