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TMI Blog2018 (5) TMI 1722X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid appeals, the same are being disposed of by way of consolidated order to avoid repetition of discussion. 2. The appellant, Myung Hwan Lee (hereinafter referred to as 'the assessee') by filing the present appeal, sought to set aside the impugned orders both dated 15.02.2016 passed by Ld. CIT (Appeals)-2, Noida on the grounds inter alia that :- "ITA No.2100/Del/2065 1. That on the facts and circumstances of the case and in law, the Hon'ble CIT(A) has erred in law and on facts in upholding the reassessment order passed u/s 147 r.w.s. 148 by the Ld. Assessing Officer {'Ld. AD ,}, inter alia, because: 1.1. The re-assessment proceedings were without jurisdiction, there being, undisputedly, no service of notice u/s 148 of the Act on the appellant. 1.2. That a mere opportunity to inspect the assessment record provided by the Ld. AO to the counsel of the appellant does not meet the requirements of section 148 in so far as a valid service of notice is concerned. 1.3. That in the absence of any service of notice u/s 148 there was no jurisdiction with the Ld. AO to initiate, proceed with and complete re-assessment proceedings. 3. That without prejudice, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the actual amount of the school fee of ₹ 8,22,213/-. 2. That on the facts and circumstances of the case and in law, the Hon'ble CIT(A) has erred in law and on facts in upholding the reassessment order passed u/s 147 r.w.s. 148 by the Ld. Assessing Officer {'Ld. AO '}, inter alia, because: 2.1. The re-assessment proceedings were without jurisdiction, there being, undisputedly, no service of notice u/s 148 of the Act on the appellant. 2.2. That a mere opportunity to inspect the assessment record provided by the Ld. AO to the counsel of the appellant does not meet the requirements of section 148 in so far as a valid service of notice is concerned. 2.3. That in the absence of any service of notice u/s 148 there was no jurisdiction with the Ld. AO to initiate, proceed with and complete re-assessment proceedings. 3. That without prejudice, on the facts and circumstances of the case and in law, the Hon'ble CIT(A) has erred in upholding that the Ld. AO at Dehradun had the jurisdiction to make a reassessment u/s 147 of the Act inter alia because: 3.1. It is an undisputed fact that the jurisdictional AO i.e. ACIT International Taxation, Dehradun neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the assessment years 2005-06 and 2006-07. Assessee has not filed fresh return in compliance to the notice u/s 148 of the Act. AO proceeded to hold that in AY 2005-06, assessee filed return declaring income of ₹ 17,74,900/- (salary income) which was filed by non-resident company as an agent of Mr. M.H. Lee. Out of the salary income of ₹ 17,74,900/-, amount of ₹ 6,12,000/- was offered as perquisites leaving an amount of ₹ 11,62,900/- as salary in the hands of assessee on which he has paid an amount of ₹ 5,68,259/- as income-tax. So, after making payment of ₹ 5,68,259/-, an amount of ₹ 5,94,641/- was left with the assessee during AY 2005-06 to meet with its household and other expenses whereas he has paid an amount of ₹ 8,22,213/- as school fee during the year. On failure of the assessee to bring on record, the evidence for availability of funds, addition of ₹ 8,22,213/- is made u/s 68 of the Act for AY 2005-06. 3. Similarly, assessee's return of income of ₹ 17,79,500/- for AY 2006-07 was filed by non-resident company out of which amount of ₹ 4,62,000/- was offered as prerequisites and on the remaining amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adun having been processed u/s 143(1). It is also not in dispute that a notice dated 25.10.2012 u/s 142 (1) of the Act was served upon on Mr. Laxman Daga who was the earlier landlord of assessee who has forwarded the same to HHI on 12.11.2012 intimating ITO, Ward No.16 (2) vide letter dated 03.12.2012 that the assessee is assessed to tax with ADIT, International Taxation, Dehradun u/s 2 (7A) of the Act. It is also not in dispute that the then ITO, Mumbai transferred assessee's case to AO, Dehradun who has issued the notice dated 05.03.2013 u/s 142 (1) which was served upon M/s. Hemant Arora and company, counsel of HHI. 9. In the backdrop of the aforesaid facts and circumstances of the case, order passed by ld. Revenue authorities below, arguments advanced by ld. AR for the parties, the sole question arises for determination in this case is :- "as to whether a valid notice was issued to the assessee u/s 148 of the Act for reopening of the assessment for AYs 2005-06 and 2006-07?" 10. The ld. AR for the assessee brought on record vide Notification No.9579 dated 05.08.1994 conferring jurisdiction in respect of foreign companies and employees of non-resident companies which is extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "left". Assessee had filed return of income for AY 2005-06 on 26.09.2005 and notice dated 28.03.2012 issued u/s 148 of the Act was returned by the postal authorities with remarks "left" whereas limitation for issuance of the notice u/s 148 of the Act expires on 31.03.2012 u/s 149 of the Act. So, notice issued u/s 148 is not a valid notice for reopening. 13. Furthermore notice dated 25.10.2012 issued u/s 142 (1) was handed over to landlord of the assessee who has further handed over the same to Hyundai Heavy Industries Co. Ltd., employer of the assessee on 12.11.2012 who has intimated on 03.12.2012 to ITO, Mumbai that assessee was on deputation with HHI, Mumbai as liaison officer from 2004 to December 2007, thus permanently left India. Thereafter, ADIT, International Taxation, Dehradun (AO) issued the notice dated 05.03.2013 u/s 142 (1) which was served upon the assessee. 14. Despite the fact that the AO has been duly intimated by the counsel for assessee that serve of notice u/s 148 of the Act has never been effected on the assessee, the AO proceeded to pass the assessment order u/s 144 of the Act. Furthermore, no order u/s 127 of the Act was passed to transfer the case from Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) observed, inter alia, that assessee was registered with RoC, Delhi, and its registered office was at Uttam Nagar, Delhi; that assessee had filed its tax return for assessment years 1998-99 to 2000-01 at Delhi; and that this showed that reassessment notice issued from Agra was without any jurisdiction and, accordingly, he annulled reassessment proceedings - Whether it is only an Assessing Officer within meaning of section 2(7 A) who can assess or reassess any escaped income of an assessee under section 147 - Held, yes - Whether since Assessing Officer at Agra not being Assessing Officer qua assessee, as above, he could not have assessed or reassessed any escaped income of assessee for year under consideration under section 147 and he could not have served assessee with a notice under section 148 for year under consideration and, hence, impugned order could not be found fault with at all - Held, yes Section 29288 of the Income-tax Act, 1961 - Notice deemed to be valid in certain circumstances - Assessment year 2001-02 - Whether section 292BB does not cure jurisdictional defect in notice - Held, yes - Whether section 292BB is applicable with effect from 1- 4-2008 and it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to New Delhi, the said respondent had no jurisdiction to issue notice under s. 148 for the assessment year in question. Hence, the impugned notice dated 28th March, 2006 under s. 148 issued by the AO is arbitrary, without jurisdiction and illegal. So far as the other impugned notices are concerned, since it is evident from the notice dated 13th November, 2006 issued by the respondent no.3, that it was pursuant to the notice under s. 148, the same is also without jurisdiction and illegal. The notice under s. 142 of the Act dated 20th November, 2006 issued by the respondent no.3, is also without jurisdiction and illegal as evidently it was consequent to the notice under s. 148, it being obvious from the "requisitions" appended to the said notice that the petitioner was intimated that "in response to notice u/s s. 148, you have not yet filed your return of income". So far as the notice under s. 143(2) dated 7th December, 2006 issued by the respondent no.3 is concerned, since it was enclosed along with the notice dated 7th December, 2006 with regard to the assessment proceedings under s. 147 initiated by the respondent no.2 for the said assessment year, that too, is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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