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TMI Blog2018 (5) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... C.I.T.(A) erred in passing exparte Order dismissing the Appeal after rejecting the request for Adjournment of the Hearing till the Honourable I.T.A.T. decides the Appeals on involving similar grounds of Appeals for Assessment Years 1999-2000, 2000-2001, 2003-2004 and 2004-2005, pending before the Honourable I.T.A.T. II) On the facts in the circumstances of the case and in law, the learned C.I.T.(A) erred in confirming the addition of ₹ 2,10,30,089, being the value of Foreign Exchange allegedly brought into India by the Appellant on visits to India, in the accounting year relevant to the Assessment Year in Appeal, as per the CDF Form, copies of which were obtained from the DRI's office. The Appellant used to Take Back his Foreign Exchange brought by him visiting to India, on return to Hong-Kong, where he was permanently residing. This fact has been ignored by the Assessing Officer, and the C.I.T. (A) while confirming the addition of ₹ 2,10,30,089 relying upon the Appellate Order of the C.I.T. (A) for other years which are in Appeal before the I.T.A.T. iii) On the facts in the circumstances of the case and in law, the learned C.I.T. (A) erred in confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions and arguments of the learned AR and relied on the orders of the authorities below. The learned DR submitted that the ground was not taken either before the Assessing Officer or before the CIT(A) and, therefore, the same should not be admitted at this stage. 5. We have heard rival submissions and have carefully perused the material on record. The facts of the case reveal that the search in this case was conducted on 05.01.2005 and as per the provisions of section 153B(b) of the Act , the order of assessment u/s. 153A should have been framed on or before 31.03.2007 whereas, as a matter of fact, the same was framed vide order dated 31.12.2007. We also find that in the assessee s own case the coordinate Bench of this Tribunal, vide its order dated 14.09.2016, for A.Y. 2002-03 in ITA NO.2321/Mum/2014, relating to the same search, has held that the assessment order passed by the Assessing Officer is invalid as being barred by limitation. The relevant paragraph is reproduced as under: 3. After hearing the rival submissions and perusing the material on record, we find that the issue raised in ground no.2 by the assessee qua the assessment order passed is barred by limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a search-case, then it has to be held that it would to be governed by the provisions of section 153A of the Act, as the action u/s.132A was taken after 31.05.2003. Explaining the scope of the section 143A,the Hon ‟ ble Jharkhand High Court has, in the case of Abhay Kumar Shroff (290 ITR114),held as under: From a bare reading of the provisions of sections 153A, 153B and 153C of the Income -tax Act, 1961 and the Departmental Circular No. 7 dated September 5, 2003, it is manifestly clear that after May 31 ,2003,the earlier provision of block assessment in the case of search initiated against the assessee, shall not apply. Instead, the provision that there shall be single assessment on undisclosed income comprising previous years relating to six assessment years preceding that in which the search was conducted, shall apply. It further provides that the Assessing Officer shall issue notice to such person requiring him to furnish return of income in respect of six assessment years immediately preceding the assessment year relating to the previous year in which the search was conducted under section 132 or requisition was made under section 132A of the Act. The second pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuch as their books of account, assets, documents, etc., are seized or requisitioned, though from different locations. Moreover, the seizure or requisition must be of such a character as to persuade the Assessing Officer to even reopen closed assessments. In this sense, there is no hostile discrimination between the two categories of persons. From the above it is clear that for the actions taken w.e.f.01.06.2003,assessments will have to be completed as per the scheme of section 153A.The section provides for issuing of notice for assessing or reassessing the income of an assessee. From the records and the Grounds of Co.s.it clear that though in the cases under consideration notices had to be issued u/s.153 A of the Act, but were not issued. The AO had issued notices u/.148 of the Act. Issue of notice u/s.153A and 148 has been decided by the Hon ‟ ble M P High Court, in the case of Ramballabh Gupta (288ITR347), as under: In order to decide the legality and validity of the notice issued under section 148 of the Income-tax Act, 1961, it is necessary to see as to whether the conditions precedent provided in section 148 are satisfied or not. Once the conditions p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their power by the authorities. In any case, such defect would be cured by section 292B. iii.) The signing of a notice issued under s.271(1)(a) of the Act, for showing cause why penalty should not be imposed on the assessee for delay in filing returns, is not a mere inconsequential technicality. It is a requirement of the provisions of O.5, r. 1(3) of the Civil Procedure Code, 1908, which are applicable by virtue of the provisions of section 282 of the Act. Section 282 of the Act provides that a notice under the Act may be served on the person named therein as if it were a summons issued by a court under the CPC,1908. Sub-rule (3) of r. 1 of O. 5 of the CPC provides that every summons shall be signed by the judge or such officer as he appoints. Therefore, in view of this provision, the notice to show cause why penalty should not be levied by the ITO should be signed by the AO and the omission to do so invalidates the notice and in such a situation section 292 B will not come to rescue of the AO. iv.) Section 292B might apply to a case where service of notice had already been effected and there is only a technical mistake in the notice. But, where no notice had been serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xi.) The provision in section 139(9)overrides the other provisions of the Act including section 292B of the Act. xii.) According to section 140 of the Act, every return has to be signed and verified. The word shall has been used in the section which shows that it is mandatory that every return should be signed and verified and if it is not signed and verified, then it is in breach of the provisions of section 140 of the Act. Therefore, this cannot be a defect which can be cured as per the provisions of section 292B of the Act and any return filed without signature and verification of the assessee will not be treated as a valid return. xiii.) Time barring assessment does not come within the purview of mistake, defect or omission referred in section 292B of the Act. In Peeru Lal, Mohan Lal (257ITR198), Hon ‟ ble Rajasthan High Court held that the expression mistake, defect or omission cannot be understood as one of procedure, so as to override the limitation prescribed by law. xiv.) Cancelling the registration of the firm on the ground of error in the allocation of shares among the partners, without issuing notice under section 158r.w.s.187 and 67 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental infirmity in the assessment. It cannot confer jurisdiction, where jurisdiction has not been properly assumed. In the matter of Norton Motors(275ITR595),the Hon ‟ ble P H High court has held as under: To put it differently, section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his /its jurisdiction, the same cannot be cured by having resort to section 292B. If the facts of the case under appeal are considered in light of the above discussion, it becomes clear that the provisions of section 292B are not applicable. In the cross objections the AO wants us to treat us the assessment completed u/s.148 as assessment finalised u/s.153A of the Act. In our opinion, both the sections deal with different situations and notice issued under one section c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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