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TMI Blog2016 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... e For The Revenue : Shri Sunil Kumar Agarwala, JCIT ORDER PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : In this appeal filed by assessee it has taken altogether six grounds which are reproduced hereunder : 1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The order of assessment passed uls.143[3] rws 153C of the Act is bad in law and void-ab-initio in as much as there was no justification to issue the notice u/s.153C of the Act and therefore, the order of assessment passed by the A.O. and sustained by the learned CIT[A] is opposed to law, consequently, the impugned assessment order deserves to be cancelled. 3. Without prejudice to the above, the order of assessment passed u/s.153C of the I.T.Act is further bad in law as reasons for issuance of such notice u/s.153C of the I.T.Act have not been given and the appellant has reasons to believe that the same has not been recorded and that the mandatory conditions to assume jurisdiction is to record reasons and in the absence of the same, the assessment is bad in law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circle -2(2), Bangalore. But, according to him, this notice could not be reckoned as valid since the assessment order mentioned only the notice dt.26.06.2008. Ld. AR submitted that assessment was therefore done without issue of a valid notice u/s.142(1) of the Act. 04. As per the Ld. AR, in response to the notice dt.26.06.2008 u/s.142(1) of the Act, assessee had on 23.07.2008 filed a reply where it was pointed out to the AO that the notice dt.26.06.2008 was invalid for want of jurisdiction. According to the Ld. AR assessee had earlier filed a return of income for the impugned assessment year on 22.02.2008 and along with the above mentioned letter filed a copy of the said return was attached. The proceedings initiated based on an invalid notice u/s.142(1) of the Act, according to him, was invalid. Further according to him, this being a purely legal question, the Tribunal could consider it even in the absence of a specific ground. For this reliance was placed on the jurisdictional High Court judgment in the case of Sankeshwar Printers P. Ltd v. DCIT [(2013) 218 Taxman 360]. 05. Continuing his argument on merits, Ld. AR submitted that the assessee was aggrieved on the directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus it could not be say that its income should be assessed under the head income from business . Further as per the Ld. DR assessee could have file an appeal before the CIT (A) only under the circumstances mentioned u/s.246(1)(a) of the Act. Its appeal was not against an appealable order. Thus according to him, CIT (A) fell in error in adjudicating the appeal of the assessee. According to him AO had not made an shift of the head of income. Assessee was just trying to get a favourable order so that observations of the AO with regard to the authenticity of its transactions with M/s. Shyamaraju Co. India P. Ltd could be expunged, which would in turn help M/s. Shyamaraju Co. India P. Ltd in their assessments. 08. I have perused the orders and heard the rival contentions. Grounds 2 to 4 have not been pressed by the Ld. AR and therefore are dismissed. 09. Vis-a-vis the additional ground orally taken by the Ld. AR, what I find is that a legal ground can be raised before the Tribunal though it is not appearing in the appeal memo, as held by the Hon ble Karnataka High Court in the case of Sankeshwar Printers P. Ltd (supra). Case of the assessee is that notice u/s.142(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been calculated as if the assessee had claimed and had been actually allowed the deduction in respect of the depreciation for each of the relevant assessment years. (4) The provisions of sections 44AA and 44AB shall not apply in so far as they relate to the business referred to in sub-section (1) and in computing the monetary limits under those sections, the gross receipts or, as the case may be, the income from the said business shall be excluded. (5) Nothing contained in the foregoing provisions of this section shall apply, where the assessee claims and produces evidence to prove that the profits and gains from the aforesaid business during the previous year relevant to the assessment year commencing on the 1st day of April, 1997, or any earlier assessment year, are lower than the profits and gains specified in sub-section (1), and thereupon the Assessing Officer shall proceed to make an assessment of the total income or loss of the assessee and determine the sum payable by the assessee on the basis of assessment made under sub-section (3) of section 143. (6) Notwithstanding anything contained in the foregoing provisions of this section, an assessee may claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of. 12. Since Shri. P. Shyamaraju was also a partner of the assessee firm, I cannot find any fault in him exercising control over the accounts of the assessee as well. Copy of the partnership deed placed at paper book page 34 to 40 also show that Shri. P. Shyama Raju was a partner of the assessee fim. In any case we find that the statement of Shri. V. Samba Moorthy was neither put to the assessee nor assessee was given an opportunity to cross examine in the fact of this. I am of the opinion that the lower authorities were not justified in placing reliance on the statement of Shri. V. Samba Moorthy and ignoring the evidence filed by the assessee. Assessee, in my opinion had produced sufficient records to prove that it was doing contract work. It could very well rely on Section 44 AD of the Act since its turnover was less than ₹ 40 lakhs. I am of the opinion that CIT (A) was therefore not justified in shifting the source of income from business to other sources. Ground 5 of the assessee therefore stands allowed. 13. In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on 6th day of January, 2016. - - TaxTMI - TMITax - Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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