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TMI Blog2021 (5) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... on 24.10.2007 and served on the assessee on 29.12.2007. The appeal to the Tribunal has been presented within the prescribed time period of two months i.e. on 20.2.2008 but with a short payment of appeal fees. The Registry issued a defect notice to the assessee to deposit the balance fees to the Tribunal. It is the prayer of the assessee appeared in person that such defect of short fees payment occurred due to acute financial stringency of the appellant company as the same was completely paralyzed due to huge financial losses and the company was under liquidation. However, the assessee has deposited the deficit appeal fees belatedly with many difficulties; therefore, the payment of fees does not make appeal time barred especially when the defect has been rectified by way of submitting proof of payment of complete fees. 4. In view of above, we are of the considered opinion that this appeal has been filed by the assessee within the prescribed time period and there is no delay in filing the appeal before the Tribunal. The payment of short fee cannot be a ground for alleging the appeal as time barred. Therefore, the application of the assessee is disposed of by holding that this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be quashed. 7. Replying to above, ld. CIT DR placing reliance on the judgment of Hon'ble Supreme Court in the case of CIT vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 (SC) and submitted that taxing income escaping assessment in the case of an intimation under section 143(1)(a) is covered by the main provision of section 147 as substituted w.e.f April 1, 1989 and initiating reassessment proceedings in the case of intimation would be covered by the main provision of section 147 and not the proviso thereto. Ld. CIT DR further submitted that only one condition has to be satisfied. Failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings when intimation under section 143(1) has been issued. Further, placing reliance on the order of ITAT Delhi Bench 'A' in the case of Hanemp Properties Pvt. Ltd. vs. ACIT (2006) 101 ITD 19 (Delhi), ld. CIT DR submitted that in a case provisions of section 150 were attracted, no limitation of time is applied as provided under section 149 of the Act. Ld. CIT DR also referred to the decision of Hon'ble Supreme Court in the case of DCIT Vs. Zuari Estate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ground Nos. A & B and arguments advanced by Shri Tiberawal, we are unable to see any contention that in a case where intimation u/s. 143(1) has been issued, no initiation of reassessment u/s. 143(3) is not permitted. At the same time, we clearly observe that the main bone of contention is that there was no independent exercise and application of judicial mind by the AO and there was no fresh tangible material available before the AO to reopen the assessment u/s. 147 of the Act and thus, the reassessment process is an afterthought and against the provisions of the Act and Rules made thereunder. Therefore, same is not sustainable and deserves to be quashed. 10. As agreed by both the sides, no copy of satisfaction note is available on record nor in the respective files of the ld. representative of parties. Both the sides have agreed that the AO at page 3 of the assessment order dated 29.12.2006 has reproduced the satisfaction note, which reads as follows: "The assessee company filed its return of income alongwith audited account disclosing total income of Rs. 4,54,680/-. The return was processed u/s. 143(1)(a) of the I.T. Act, 1961. While processing the return, it was found that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings u/s. 147 of the Act and issuance of notice u/s. 148 of the Act does not apply but it is not the case of the appellant/assessee in the present appeal that the initiation of reassessment proceedings is time barred. Therefore, the proposition rendered by ITAT Delhi in the case of Hanemp Properties Pvt. Ltd. (supra) does not provide any fruitful support of the revenue in the peculiar facts and circumstances of the legal contention and grounds of the assessee in the present case. 12. So far as proposition rendered in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd. (supra) is concerned, definitely, the Hon'ble Supreme Court has clearly rendered the proposition that in a case where after processing the return of income, an intimation u/s. 143(1)(a) has been issued by the department then also, the AO is debarred or precluded to initiate proceedings u/s. 147 of the Act but Hon'ble Supreme Court also provided a condition that he must have reason to believe within the meaning of section 147 of the Act based on new tangible material which was not before the AO during processing of return of income u/s. 143(1)(a) of the Act, otherwise, there will be a review in guise of reop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of action available to the AO under the Act is application of provisions of section 147 of the I.T. Act as the appellant has understated its income by not applying the provisions of section 115JB of the I.T. Act. But there was no new or tangible material before the AO to initiate reassessment proceedings u/s. 147 of the Act. 15. From the reasons recorded by the Assessing Officer, as reproduced in para 10 of this order (supra), we clearly see that in the first para, the AO has mentioned the facts and noted that the ld. CIT(A) has deleted the prima facie adjustment due to procedural mistake and thereafter reproduced the observation of the ld. CIT(A). In the second para of the reasons, he directly jumped to note that the AO had reasons to believe that income chargeable to tax in this case escaped assessment within the meaning of section 147 of the Act. From the reasons, we are unable to see application of mind by the AO of the materials available before him. The AO has not recorded any basis or factum gathered by him after application of mind of the assessment already completed which could reflect that before initiation of reassessment proceedings u/s. 147 of the Act, he appli ..... 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