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TMI Blog2020 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the AO, however, the same is mandatory requirement under the provisions of law. - Decided in favour of assessee. - ITA NO. 447/DEL/2017 - - - Dated:- 10-9-2020 - SHRI H. S. SIDHU , JUDICIAL MEMBER AND SHRI O. P. KANT , ACCOUNTANT MEMBER Assessee by : Sh. Kapil Goel, Adv Department by : Ms. Rakhi Vimal, Sr. DR ORDER PER H.S. SIDHU, JM: This appeal filed by the Assessee is directed against the impugned order dated 25.11.2016 passed by the Ld. CIT(A)-9, New Delhi in relation to assessment year 2007-08 on the following grounds:- 1. That Ld. AO has erred in assuming jurisdiction without satisfying requirement of proviso to section 147 i.e. reopening assessment after four years without failure on the part of assessee to disclose fully and truly all material facts necessary for assessment. 2. That Ld. AO has erred in assuming jurisdiction under section 147/148 without reason to believe i.e. the basic condition for assuming for jurisdiction thereby making assessment order bad in law. 3. That Ld. AO has erred in assuming jurisdiction under section 147/148 without taking approval u/s. 151(1) as applicable to the facts of the case. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit And Loss Account for the year ending 31.03.2007. The Assessee s Counsel filed objections to the notice u/s. 148 of the Act dated 30.08.2014 on the grounds that notice u/s. 148 was served upon the assessee on 04.04.2014. i.e. after the period prescribed u/s. 148 and 149 of the Act and that information from ITO of M/s Calx Marketing Pvt. Ltd. does not constitute the reason to believe . According to the Assessing Officer, the objections raised by the assessee dated 30.08.2014 received in his office on 03.09.2014 which have been examined and the objections raised by the assessee were not acceptable and the AO rejected the same as mentioned in the assessment order at page no. 2 3 with the support of various case laws cited by the Assessee and AO running in page no. 4 to 11 of the assessment order. The AO vide letter dated 13.01.2015 asked the assessee to submit various details and documents, the contents of the letter dated 13.01.2015 are reproduced at page no. 11 12 of the assessment order. In response to the letter dated 13.01.2015, the assessee submitted details/ documents vide letters dated 29.12.2014 and 31.03.2015. The AO examined the same and held that 10,000 equity sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced its own money in the garb share application money / share premium. The assessee company was provided opportunity to produce the Principal Officers of the Company and to prove the identity, creditworthiness and genuineness of the transactions of the assessee company to discharge its onus. The AO was of the view that assessee has given its unaccounted cash to the entry providers and the same has been received back by the assessee through cheques. The assessee has not come forward to prove creditworthiness of these parties on account of failure to produce parties for verification of the transactions. Therefore, he has not accepted the submissions of the assessee for the reasons mentioned by the AO at page no. 14 15 of the assessment order. The AO reopened the case of the assessee on the basis of specific information received from the office of DCIT, Central Circle-22, New Delhi. The AO issued notice u/s. 148 of the Act on the basis of discovery that the assessee had transactions with a name of lender is valid. The reopening on the basis of the Investigation Report is justified. Therefore, there is no case for the assessee to claim that his onus is discharged, as the letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, Ld. Counsel for the assessee stated that assessee has filed various grounds of appeal at the time of filing of this appeal, but assessee has also filed additional ground of appeal. He draw our attention towards the additional ground of appeal filed by the assessee. For the sake of convenience, the additional ground is reproduced as under:- That Ld. AO made invalid assessment u/s. 147/148 on the basis of notice u/s. 143(2) dated 11.08.,2014 where as admitted in impugned assessment order (page 2) return was filed on 21.8.2014 after which no valid notice u/s. 143(2) of the Act is issued and served on assessee as per law so as to frame lawful assessment u/s. 143(3) and no where section 144 is invoked in assessment order by Ld. AO and therefore assessment framed by the Ld. AO u/s. 147/148 and as confirmed by Ld. CIT(A) deserves to be nullified and quashed as void ab initio and ultra vires and section 143(2) of the Act which is issued prior to return u/s. 148 being filed. 5.1 Ld. Counsel for the assessee stated that the AO has made the invalid assessment u/s. 147/148 of the Act on the basis of notice u/s. 143(2) of the Act dated 11.08.2014 whereas AO admitted in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 13.10.2017 declaring income of ₹ 7,89,440/- which was completed by the Assessing Officer u/s. 143(3) of the Act on 29.12.2009 and assessed the income at ₹ 8,45,075/-. AO issued notice u/s. 148 of the Act and reopened the case of the assessee vide notice dated 29.03.2014; assessee requested to supply the copy of reasons recorded vide letter dated 22.04.2014 which was supplied to the assessee on 08.05.2014 and the AO issued notice u/s. 143(2) of the Act dated 11.8.2014 for which he has attached the copy of notice with additional ground of petition which is on record. He further submitted that on the basis of this Date of Events, the assessee in response to the notice u/s. 148 of the Act filed the Income Tax Return dated 21.8.2014. He has also attached the copy of letter filed submitting Income Tax Return u/s. 148 of the Act etc. with the additional ground of appeal and assessee has also filed objections on the notice u/s. 148 of the Act to the Assessing Officer dated 30.08.2014. The said objections were overruled by the Assessing Officer on 16.12.2014 and final assessment order was passed u/s. 147/148 of the Act on 17.03.2015. Briefly, he stated that the AO has issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee stated that notice u/s. 143(2) of the I.T. Act was issued prior to the filing of return of income u/s. 148 of the Act meaning thereby the AO has not applied his mind before issuing the notice u/s. 143(2) of the Act and reassessment is invalid because in response to the notice u/s. 148 of the Act the assessee filed his return of income on 21.08.2014. Ld. AR for the assessee further stated that the assessment framed by the AO u/s. 147/148 of the I.T. Act has wrongly been confirmed by the Ld. CIT(A) which deserve to be quashed. In support of this contention, he has cited various case laws which we have mentioned in para no. 5.1 at pages 12-14 of this order. We have thoroughly gone the citations mentioned by the Ld. Counsel for the assessee on the issue involved in the additional ground of appeal. Keeping in view of the facts and circumstances of the present case and the legal issue involved in the present appeal, we are admitting the additional ground of appeal and adjudicating the same in the forgoing paragraphs. 7.1 We have gone through the assessment order as well as the impugned order passed by the Ld. CIT(A) and we are of the view that notice u/s. 148 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope oj the pro vision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself 10. Since the facts on record are clear that no notice under Section 143 (2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, there/ore, see no reason to take a different view in the matter. 11. These Appeals are, there/ore, dismissed. No costs... 7.1.1 Further in the case of M/s Alpine Electronics Asia Pte Ltd. vs. DGIT (2012) 341 ITR 247, the Hon ble High Court of Delhi has observed as under:- Section 143(2) of the Income Tax Act, 1961 is applicable to proceedings under section 147/148 of the Act. The proviso to section 148 of the Act grants liberty to the Revenue to se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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