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TMI Blog2015 (1) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... y opportunity of being heard. iii) On the fact s and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the status of the appellant as Resident when in fact the appellant had returned the income in the status of Non Resident and that no evidence was brought record by the Assessing Officer that the appellant was a Resident of India during the relevant period for Assessment Year 1999-2000. iv) On the fact s and in the circumstances of the case and in law, the learned CIT(A) erred in allowing 10 % of expenses of Rs. 32.488/- instead of allowing the expenses of Rs. 32.488/- which comprised main expense on account of depreciation of Rs. 17550/-. v)On the fact s and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the addition of Rs. 2,58,738/ - being F.D' s. as unexplained investment , ignoring the fact that the sum total of F.D's is on account of renewal of the F D' s. of Rs. 78,022/ - on 10.06 1998 being the renewal of F 0 brought forward cum earlier year and renewal of the same on 2409 1998. 11 12 1998 and on 2503.1998 vi )On the fact s and in the circumstances of the case and in law. the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii)The appellant craves leave to add. alter, amend or delete any ground(s) of appeal either before or during the course of hearing of the appeal." ITA No.2968/M/2011-AY.2004-05: "i)On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in dismissing the ground regarding the issue of limitation U/s. 153 of the Income Tax Act, 1961 in respect of the validity of the assessment proceedings and thereby no penalty could be levied in the case of invalid assessment, on the ground that this issue was not raised before either the Assessing Officer or the CIT(A) in appeal against the Assessment Order U/s. 143(3). ii) On the facts and in the circumstances of the case and in law, the learned C.l.T.(A) erred in relying on the decision of the C.I.T.(A) in appeal against order U/s. 143(3) without considering the facts and legal submissions submitted to the Assessing Officer as well as to the CIT(A) that no addition on account of unexplained CDF of Rs. 1,14,97,340/- & of cash deposit of Rs. 2,44,076/- in the Punjab and Maharashtra Coop. Bank in S.B. A/c. No. 8534 in coming to the conclusion that the appellant is liable to levy of penalty U/s. 271 (1)(c). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X X X X X The search in the case of above mentioned assessee was conducted on 05-01-2005. Thus, it is squarely covered by the provisions of section 153A which do not require the sanctions or approvals as well as reopening criteria mentioned by the assessee in the plea raised before the ITAT. It needs to be pointed out that issuing of notices uls.148 for A.Yrs. 1999-2000 to 2004-05 by the AO is an inadvertent mistake. As such, notices uls.153A should have been issued for A.Yrs. 1999- 2000 to 2004-05 and not uls.148. Notwithstanding the fact that an inadvertent mistake in not mentioning section 153A in the body of the order shall not render the assessments invalid, if the intent and purpose of initiating such proceedings and consummated and in view of what is stated in the body of the order with regard to the seizures, the intent and purpose of the proceedings uls.153A and 153B of the act are well established. Further, provisions of section 292B clearly states that no returns of income, assessment, notice, summons or other proceedings, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... navoidable circumstances', in the letter filed before the Tribunal, that caused delay of more than five years. Only on this ground the CO.s. can easily be dismissed. But, we would like to deal with CO.s., as the filing of CO.s.is the part of the chain of events that are not normal. First the AO issues passes order u/s.147 without taking prior approval of the authorities concerned, then when the assessee raises issue of prior approval by raising additional ground before the Tribunal it is stated that these matters were covered by the provisions of section 153A of the Act. But, strangely the JCIT in of his reports and the AO in reply to a query made under RTI Act states that no search action had taken place in the case under appeal. Besides, without highlighting the so called unavoidable circumstances the AO filed CO.s. after more than 1800 days. In the succeeding paragraphs, we would mention the facts related with the chain of events, at appropriate place. From the perusal of the Grounds of the CO.s.it is clear that the claim of the AO is that the assessments were passed under section 153A and not under section 147of the Act, that there was a search in the case of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken for issuing notices, that there was no evidence that such permission was requested for or was granted, that if there was a search the notices should have been issues as per the provisions of section 153A of the Act, that notices issued under a particular section cannot be deemed to have been issue under another section, that section 292 B could not cure the defects of jurisdiction. He relied upon the cases of Abhay kumar Shroff(290 ITR114), Ranchodas Karsonda(36ITR569)Sheila Jaggi(84ITR50)Rajendra Shah (247 ITR 772),V. Ramaiah (356 ITR 646),Sunrolling Mills.P. Ltd.(160ITR412),Ramballabh Gupta(288 ITR 347).He referred to the remand report of the JCIT, the application made the assessee to the AO under the RTI Act and the reply to it. Departmental Representative(DR)argued that notices issued under section 148 of the Act should be treated as notices issued u/s.153A,that the mistake committed by the AO in not mentioning the section was curable as per the provisions of section 292B of the Act. 4.Considering the above, we are of the opinion that one of the issues for determination is whether the present proceedings which were taken in pursuance of notice u/s.148 dated 20.02.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment 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 proviso to section 153A makes it clear that assessment or reassessment relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A shall abate. In other words, if on the date of initiation of search or requisition under section 132 or section 132A any assessment or reassessment proceeding is initiated relating to any assessment year falling within the period of six assessment years, it shall stand abated and the assessing authority cannot and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds 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 prescribed under section 148 are found present in the notice issued, in that event, the notice has to be upheld having been issued in conformity with the requirement of section 148. The only fetter put on the powers of the Assessing Officer in taking recourse to section 148 is that it cannot be issued in relation to those six assessment years which are defined in section 153A. (emphasis supplied) In all other cases and for all other assessment years section 148 can always be resorted to subject of course to the condition that it must satisfy the requirement specified in section 148." 4.3.Now,we would take up the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 served, the section would not come to the help of the Department e.g. if a notice is not issued to a minor or to his guardian or the Karta of the HUF and such notice affects the rights of the minor adversely, the proceedings initiated in pursuance of that notice cannot be cured by the provisions of section 292B of the Act. v.)Where an assessment order containing computation of income is signed by the AO,but the computation of tax made on separate sheet of paper is not signed by him, the assessment cannot be held invalid. In such cases, courts are of the views that it is not a case of non-compliance with mandatory provision. Such an assessment canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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 the Act proposing to change the share allocation among the partners, involves question of jurisdiction and therefore direction given to AO to modify the order u/s.158 cannot be sustained by relying on section 292B. xv.)Provisions relating to issue of notice for block period are considered procedural and not substantive in nature. Therefore mention of block period wrongly in notice cannot render entire assessment a nullity as the defects are curable under section 292B.Secondly,in block assessment if a notice is issued under section 158BC r.w.s.158BD of the Act and the AO fails to mention Sec. 158BD in the notice, it is not considered fatal. It is said that the defect in mentioning a particular section is curable under section 292B and conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 cannot be treated notice under another section nor can be assessment made under a particular section can be treated as finalised under another section. Section 147-148 deal with re-assessing of income for a particular AY. that escapes taxation because of the failure of the assessee or othrerwise. Section 153A deals with the matters where action has been taken u/s.132 or 132A of the Act.Each and every section of the Act has been included in the statue with a specific intention and purpose. The Legislature in its wisdom has introduced various section to regulate the tax collection. So, to assume that one section is re-placable by another is not a logical or legal conclusion. Each section, each phrase and each word of the Act has its own place and importance. If an AO commits a mistake whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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