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TMI Blog2015 (11) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were of capital in nature. So, no new material came in possession of the AO for issuing the notice u/s 148 of the Act. There was nothing in the reason recorded to show that any tangible material had come into his possession subsequent to the issue of the intimation u/s 143(1) of the Act. - Decided in favour of assessee - ITA No. 2517/Del/2013 - - - Dated:- 9-10-2015 - Sh. N. K. Saini, AM And Sh. H. S. Sidhu, JM For The Assessee : Sh. Ajay Vohra, Sr. Adv. Sh. Rohit Garg, FCA, Sh. Deepesh Jain, CA Sh. Udit Naresh, Adv. For The Revenue : Sh. J. P. Chandrakar, Sr. DR This is an appeal by the Assessee against the order dated 22.01.2013 of the ld. CIT(A)-19, New Delhi. 2. Following grounds have been raised in this appeal: 1. That on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) erred in not holding that the order dated 29.12.2011, passed by the assessing officer under section 147 of the Income-tax Act, 1961 ( the Act ) was beyond jurisdiction, bad in law and void-abinitio. 1.1 That the Commissioner of Income Tax (Appeals) erred in not appreciating that the alleged notice dated 29.03.2011 issued under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee originally filed the return of income on 01.11.2004 declaring income of ₹ 4,81,670/-. Subsequently, the case was reopened u/s 147 of the Act by issuing notice dated 29.03.2011 u/s 148 of the Act, on the basis of claim of an expenditure of ₹ 87,69,732/- on account of site expenses which were considered as capital expenditure by the AO. The assessee filed the objection regarding initiation of proceedings u/s 148 of the Act and stated that those proceedings were barred by limitation, the assessee summarized its submission as under: i) That for valid reopening of assessment after four years, the Assessing Officer should have reason to believe that the income of the assessee had escaped assessment by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. It is a condition precedent for assumption of jurisdiction under section 147(a). ii) The condition that the Assessing Officer had reason to believe that the income of the assessee had escaped assessment is question of jurisdiction, a vital thing which can always be investigated by Court. The words have reason to believe in section 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C) ITO Vs Lakhmani Mewal Das (1976) 103 ITR 437 (SC) CIT Vs T S PLP Chidambaram Chattier (1971) 80 ITR 467 (SC) H A Hanji CO. Vs ITO (1979) 120 ITR 593 (Cal) Sheo Nath Sing Vs AAC (1971) 82 ITR 147 (SC) Shri Krishna (P) Ltd. Vs ITO (1996) 221 ITR 538 (SC) Raymond Woollen Mills Ltd. Vs ITO (1999) 236 ITR 34 (SC) S. Narayanppa Vs CIT (1967) 63 ITR 219 at page 222 (SC) Ganga Saran Sons (P) Ltd. Vs ITO (1981) 130 ITR 1 (SC) Phool Chand Bajrang Lal Vs ITO (1993) 203 ITR 456 at 477 (SC) 6. The AO did not find merit in the objections of the assessee and observed that the assessee incurred the following expenses under the head administrative expenses: S. No. Expenses Details Amount in Rs. 1. Material Purchases 10,22,216 2. Labour Charges and cartage 33,53,479 3. Fuel and other consumable 10,47,002 4. Hire Charges Paid 4,11,972 5. Personnel Expenses 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the (4) Nothing contained in this rule shall affect the power the CIT(A) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the AO under clause (a) of subsection (1) of section 251 or the imposition of penalty under section 271. There is nothing in the record/submission of the assessee that what prevented him from furnishing the evidence now furnished. Reasons are not there as to what prevented the assessee from filing the present evidence now instead of at time of assessment. In this regard, it is submitted that the bills submitted by the assessee at page no. 1 to 124 with his letter dated 2.12.2011 have not been submitted in the hearing conducted on 22.12.2011. Further, the notice u/s 142(1) dated 17.8.2011 was sent by speed post (copy enclosed). The assessee s counsel requested for copy of reasons which was supplied to him by hand on 02.09.2011. Copy of the order sheet in this regard is enclosed. Further, the AO has recorded the reasons in which satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant to intimate the change to the AO. In his remand report, the AO has pointed out that it was only on 13.12.2011 that the appellant filed a letter intimating the change in address. As the notice under section 148 was issued on 29.3.11, the AO can hardly be faulted for sending the notice to the available address. It may have been a different matter if the notice had been sent to the address of another person however, in this case all that can be said at best, is that the notice was sent to the address of the appellant on the AO s record, and the appellant s address had changed subsequently. In the assessment order, the AO has observed that case of the captioned assessment year was reopened u/s 147 by issue of notice u/s 148 dated 29.03.2011. In response to the notice issued, Sh. Sanjay Garg, AR of the assessee attended and filed his reply . This shows that the appellant participated in assessment proceedings and had the opportunity to explain his case. In these facts, any change of address does not warrant quashing of the notice u/s 148 and consequent assessment. In view of the above, the appellant s argument that no notice under section 148 was served and therefore, reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration u/s 148 of the Act was not issued at the new address, therefore, without serving notice, the reassessment framed u/s 147 of the Act was not valid. It was further stated that the AO has not issued notice u/s 143(2) of the Act. Therefore, the assessment framed without issuing the notice u/s 143(2) of the Act was not valid. The reliance was placed on the following case laws: CIT Vs Hotel Blue Moon 321 ITR 362 (SC) Alpine Electronics Asia Pte. Ltd. Vs DGIT 341 ITR 247 (Del) DIT Vs V.R. Educational Trust, ITA 510/2011 (Del) order dated 10.02.2012 CIT Vs HUF of H.H Late J.M. Scindia 300 ITR 193 (Bom) CIT Vs Mr. Salman Khan, 2362 of 2009 (Bom) order dated 01.12.2009 Sapthagiri Finance Investments Vs ITO, TC(Appeal) (2012) 210 Taxman 78 (Mad) CIT Vs Alstom T D India Ltd. (2014) 226 Taxman 103 (Mad) CIT Vs C. Palanippan 284 ITR 257 (Mad) CIT Vs Adarsh Travel Bus Service 204 Taxman 114 (Mag.) (All.) Raj Kumar Chawla 145 Taxman 12 (Del) (SB) ITO Vs Tilak Raj Satija, ITA No. 391/Del/2010 (Del) order dated 14.08.2013 Shri Mohinder Kumar Chhabra Vs ITO, ITA No. 3523/Del/2013 order dated 13.12.2013 UKT Software Technologies (P) Ltd. Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been made for admission of the additional evidences. The ld. DR also submitted that the AO issued the intimation u/s 143(1) of the Act, therefore, it cannot be said that he applied his mind while issuing the said intimation. It was contended that when the AO came to the conclusion that income had escaped there was proper application of mind. Therefore, the notice issued u/s 148 of the Act was after forming the opinion that the income escaped the assessment as such the addition made by the AO and sustained by the ld. CIT(A) was fully justified. 18. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the notice u/s 143(2) of the Act was not issued before framing the assessment u/s 147 r.w.s 143(3) of the Act. This fact has also been admitted by the AO in his remand report dated 10.12.2012. On a similar issue the Hon ble Jurisdictional High Court in the case of Alpine Electronics Asia Pte. Ltd. Vs DGIT and Ors. (supra) held as under: Section 143(2) of the Income-tax Act, 1961, is applicable to proceedings under section 147/148 of the Act. The proviso to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason to believe or that the alleged reason to believe is not relevant for the formation of the belief that income chargeable to tax has escaped assessment. In doing so, it is further open to the assessee to challenge the reasons recorded under section 148(2) on the ground that they do not meet the standards set in the various judicial pronouncements. 20. In the present case also the AO accepted the return u/s 143(1) of the Act and thereafter issued the notice u/s 148 of the Act but there was nothing in the reason recorded to show that any tangible material had come into his possession subsequent to the issue of the intimation u/s 143(1) of the Act. In the instant case, it is also relevant to point out that the notice dated 29.03.2012 issued u/s 148 of the Act for the assessment year under consideration i.e. assessment year 2004-05 was issued at the address 81, Vigyan Vihar, New Delhi- 110092 whereas the new address of the assessee was 626, DLF Tower-B, Jasola Vihar, Near Appolo Hospital, New Delhi, which is also clear from the notice dated 10.09.2010 u/s 143(2) of the Act issued to the assessee for the assessment year 2009-10, copy of which is placed at page no. 30 of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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