9911796707
TMI Blog2019 (6) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudice to the above, on the facts and in the circumstances of the case and in law, the Id. CIT (A) erred in not upholding the appellant's objection that assessment proceedings conducted by the assessing officer as bad in equity and as he did not initiate the proceeding well in time and took at fag end of time barring period, leaving insufficient time for compliance by appellant and thus deprived the appellant proper opportunity of being heard and concluded the assessment in tearing hurry, without giving a fair hearing and without following the principles of natural justice. 1.3 The Ld. CIT (A) failed to appreciate that: a. merely giving opportunity by the A.O to give information was not by itself good enough to justify the inference of a fair hearing, which is basic principle of natural justice; b. reasonable opportunity should have been given to the Appellant to put forward its case by the AO. c. a fair opportunity is one where the assessee is faced with the tentative conclusion of assessing officer for rebut; and d. it is settled law that assessing officer must proceed without bias and give sufficient opportunity to assessee to place its case before the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance of loss on foreign exchange fluctuation loss of Rs, 2.37.86,650: 3.1 On the facts and in the circumstances of the case and in law, the CIT (A) erred in confirming the disallowance of loss of Rs. 2,37,86,650/- incurred by the Appellant due to foreign exchange fluctuation on the alleged ground that the appellant failed to furnish supporting documents. 3.2 He failed to appreciate and ought to have held that: a. the Appellant is in the business of import of goods; b. rates of foreign exchange currencies did fluctuate widely during the relevant previous year; c. corresponding import purchase have been allowed as normal business expenditure in same year and also in earlier assessment years; d. foreign exchange fluctuation gain have been offered to tax and accepted as income in earlier assessment years; e. based on rule of consistency the loss on foreign exchange fluctuation be treated as normal business loss; f. the loss was computed and debited to Profit & loss Account in accordance with the Accounting Standard-11 issued by the ICAI; g. the Appellant was not given reasonable opportunity to put forward its case; h. it is settled law that assessment cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the time limit available for completion of assessment was approaching the last date just to avoid the scrutiny proceedings and also escaped from wrong claim made in respect of various expenses in its financial statements. Therefore, objection raised by the assessee through its authorised representative does not have any merit and accordingly, rejected objection raised by the assessee for non service of notice. 3. Insofar as unsecured loan received during the year, the AO has made addition towards unsecured loan received from Satellite Developers Ltd and Shri Mahendra B Jain on the ground that the assessee has failed to furnish required details to justify creditworthinesss of the person and genuineness of transaction. Similarly, the AO has made addition towards foreign exchange fluctuation loss of Rs. 2,37,86,650 on the ground that although sufficient opportunities have been provided to the assessee to produce relevant details no evidence, including copies of sale and purchase invoice, bank certificate and other related documents relevant to import and export made during the previous year has not been filed to justify its claim for loss in foreign exchange fluctuation. Althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssbook on the date of advancing loan. The assessee has not substantiated loan from Satellite Developers Ltd alongwith relevant evidences like balance sheet, availability of own funds, therefore, he opined that there is no reason to interfere with the findings recorded by the AO to make addition towards unsecured loan u/s 68 of the Act. Similarly, the Ld.CIT(A) has confirmed addition made by the AO towards foreign exchange loss on the ground that the assessee has not filed any evidence to prove loss claimed on foreign exchange fluctuation with necessary details. Although, the assessee has filed certain additional evidences, but such evidence has been filed without filing any formal application for admission of additional evidence, therefore, there is no reason to admit additional evidence filed by the assessee and accordingly, rejected evidence filed by the assessee and confirmed addition made by the AO. Aggrieved by the order of Ld.CIT(A), assessee is in appeal before us. 6. The first issue that came up for our consideration from ground 1 is validity of assessment proceedings consequent to non service of notice u/s 143(2) within the prescribed time provided under the Act. The Ld.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the directors of the company have also filed affidavits and reconfirmed the facts stated by the Accountant and also non service of notice u/s 143(2). Consequently, the whole proceedings become invalid and liable to be quashed. In this regard, she relied upon various judicial precedents. The case laws relied upon by the assessee are as under:- I. C1T v. Kanpur Plastipack Ltd. (2018) (256 Taxman 394) SC 2. C1T v. Kanpur Plastipack Ltd. (2017) (390 ITR381) All. HC 3. CITv.ChetanGupta (2016) (382 ITR 613) DelHC 4. CIT v. Dr. Ajay Prakash (2014) (42 taxmann.com 387) All. HC 5. CIT v. Rajesh Kumar Sharma (2007) (165 Taxman 488) Del. HC 6. Addl. CIT v. Prem Kumar Rastogi (1980) (124 ITR 381) All. HC 7. Jayanthi Talkies Distributors v. CIT ( 1 979) (120 ITR 576) Mad. HC 8. Heaven Distillery (P.) Ltd. v. 1TO (2017) (185TTJ 197) Mum. ITAT 9. DCIT v. M/s. M. K. Enterprise (ITA Nos. !81and426/Kol/2013) 10. Anil Kumar Goel v. ITO (2008) (116 TTJ 239) 11. Hind Book House v. ITO (2005) (92ITD 415) 12. ITO v. Suraj Prakash (1984) (7 ITD 839) 13. CIT v. Baxiram Roadmal (1934) (2 ITR 438) Nagpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if such notice is served on the persons, who is not authorised to receive notice from the assessee, it cannot be said that there is a valid service of notice. We further note that the assessee has filed various details to argue that Shri Anant Dongarkar is no longer employed with the assessee at the time of service of notice. In fact, the assessee has filed ledger account copy of salary paid to him as per which he was employed upto 31-03-2011. This fact has been confirmed by Mr. Anant Dongarkar in his affidavit dated 09-04-2019 where he has categorically stated that he left the service of the assessee from 01-04-2011 and also the AO has called him to his office during August, 2013 and forcibly handed over notice u/s 143(2) for AY 2012-13 despite he having refused to accept the notice on the ground that he was no longer employee of the assessee and also he could not send the notice to the company. Further, this fact has been reiterated by the directors of the assessee company where they have, in their affidavits filed on 09-04-2019 stated that Mr.Anant Dongarkar left the service of the assessee on 31-03-2011 and that he was not authorised to collect any notice on behalf of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that power of attorney did not include in it any authority to accept any fresh notice. The revenue has filed SLP against order of the Hon'ble High Court and such SLP has been dismissed by the Hon'ble Supreme Court in its order dated 03-07- 2018 where it was held that re-assessment proceedings initiated on the basis of notice served u/s 148 on accountant of the company were vitiated as accountant was not principal officer of company nor was there any material to show that he had been authorised by company to accept any notice. The Hon'ble Delhi High Court in the case of CIT vs Chetan Gupta (2016) 382 ITR 630 (Del) has considered an identical issue and after analysing provisions of section 282(1) read with order 5 Rule 12 of CPC and order 3 Rule 6 of CPC held that notice required to be served u/s 148 has to be mandatorily served upon assessee in accordance with section 282(1) of the Act. The court further held that where prior to completion of assessment, assessee raised an objection that he had not been duly served notice in accordance with section 148, Proviso to section 292BB was attracted and revenue could not take advantage of main portion of section 292BB. 10. In this case, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
