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TMI Blog2021 (8) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Adv For the Revenue : Shri Prakash Dubey, Sr. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the Revenue and cross objection by the assessee are preferred against the order of the Commissioner of Income Tax [Appeals] - 27, New Delhi dated 28.09.2015 pertaining to Assessment Year 2010-11 . 2. The grievance of the Revenue read as under: (1) That the commissioner of Income Tax (Appeals) has erred in law and on facts of the case in deleting ₹ 11,18,669/- which was added to the income of the assessee on account of as unexplained expenditure. (2) That the commissioner of Income Tax (Appeals) has erred in law and on facts of the case in not discussing the issue and facts of unexplained expenditure raised by the AO in his assessment order on basis of which addition of ₹ 11,18,669/- was made. (3) That the commissioner of Income Tax (Appeals) has erred in law and on facts of the case in deleting ₹ 6,94,52,809/-which was added to the income of the assessee on account of as unexplained deposits. (4) That the commissioner of Income Tax(Appeal) has erred in law and on facts in relying on the submissions filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Pursuant to the order of the ld. CIT, notice u/s 148 of the Act was issued and served upon the assessee and the reasons were supplied. We find that in the case in hand, similar order was framed u/s 143(3) r.w.s 153C of the Act and the order was challenged before the ld. CIT u/s 264 of the Act and the said order has been declared null and void. 8. In the case in hand, again pursuant to the order of the ld. CIT u/s 264 of the Act, notice u/s 148 of the Act was issued and served upon the assessee and reasons recorded for reopening the assessment are identical to the reasons recorded in the case of M/s Sam Portfolio Pvt Ltd, though quantum may differ. 9. We further find that the quarrel in relation to the assessment order in the case of M/s Sam Portfolio Pvt Ltd travelled upto the Tribunal and the Tribunal in ITA No. 6218/DEL/2015 and CO No. 403/DEL/2015 vide order dated 20/02.2020 has annulled the assessment order. 10. On finding parity on the facts of the case in hand with the facts of the case of M/s Sam Portfolio Pvt Ltd [supra], we have no hesitation in adopting the findings given by this Tribunal in the case of M/s Sam Portfolio Pvt Ltd [supra]. The relevant findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish the identity and capacity of the persons who have allegedly given share application money or to establish the genuineness of these transactions. Hence, sum to the tune of ₹ 42,00,000/- is required to be added to the income as it has escaped assessment, on protective basis in interest of revenue. D) From perusal of the bank statements and other documents is its seen that there are unexplained deposits other than cash to the tune of ₹ 8,17,10,951/-. These deposits are unexplained even after considering the unexplained other liabilities, share capital share premium. Hence, sum to the tune of ₹ 8,17,10,951/- is required to be treated as unexplained other deposits, which has escaped assessment on protective basis in interest of revenue. It is further stated that assessee was done of the intermediary companies used by Shri Aseem Kumar Gupta for providing accommodation entries as admitted by Shri Aseem Gupta. I, therefore, have reasons to believe that this amount of ₹ 8,60,27,610/- represents income of the assessee chargeable to tax which has escaped assessment for A.Y. 2008-09. The necessary approval may kindly be accorded to initiate proceedings u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasons have been recorded which were stated in the earlier notice served under Section 148 of the Act on the basis of which the assessment was made on 14th Feb., 2003 and which was quashed being barred by limitation. Thus, from the facts itself, it is crystal clear that though the present proceedings were initiated by the AO within the prescribed period of limitation yet it is clear that the same were initiated only to circumvent the earlier order of the Tribunal vide which the assessment dt. 14th Feb., 2003 was held to be time-barred. Thus, the AO cannot be allowed to initiate fresh proceedings on identical facts as the first assessment proceedings had failed to result in a valid assessment due to lapse on the part of the IT authority. Resultantly, the appeal is allowed and the order of the Tribunal is set aside. 14. The Hon ble High Court of Rajasthan in the case of M/s. Rameshwar Prasad Sharma in ITA No.642/2011 dated 04.09.2017 at the occasion to consider inter alia the following substantial question of law. 1. Whether the tribunal was legally justified in reversing the finding of CIT(A) and annulling the reassessment u/s 147 which was done on the basis of material f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eassess such income other than income involving matters which are subject matter of any appeal, reference or revision which is chargeable to tax and has escaped assessment. After analyzing the provisions of section 147, we are of the view that there was no material with the AO to hold any income has escaped assessment. Original return was filed u/s 139(1) which was subject matter of scrutiny assessment and assessment u/s 143(3) was completed. Huge additions were made, they were challenged before ld. CIT(A) and on legal point it was found that the assessment completed by issuing notice u/s 143(2) issued was barred by limitation. Since, the first assessment was subject matter of appeal before appellate authority, therefore, on the same issue when it was found that assessment has been annulled it cannot be a subject matter of reopening of the assessment. Thee must be some fresh material or new information which authorizes the AO to issue notice u/s 148. There are so many cases when return had been filed by the respective assessee has been accepted u/s 143(1) on the same material. No notice u/s 148 can be issued as held by various courts. There must be reason to believe and there mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quent to assessment on 18.3.03. Therefore, we are of the opinion that tribunal rightly decided the issue in favour of the assessee and first issue is required to be answered in favour of the assessee. With regard to second issue in view of finding on issue no.1, this issue is also answered in favour of the assessee. 16. The coordinate bench in the case of Babulal Lath in ITA No.3532/Bom/1994, 83 ITD 0691 has held as under: The original assessment had to be quashed by CIT(A) as the proceedings by way of issue of notice under Section 143(2) were initiated beyond time. The reassessment proceeding under Section 147 was initiated by the AO and the total income was assessed at ₹ 21,15,040 as was determined in the original assessment. Thus, it appears that reassessment proceeding was initiated not because any income had escaped assessment to tax but to circumvent the time-barred assessment. Thus, the reassessment proceeding under Section 147 amounts to extending the limitation which the AO is not empowered to. It is trite law that limitation period under Section 143 cannot be extended by an IT authority and it is also quite recognised principle of law that an act, which cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleted. 17. The coordinate bench of Chennai in the case of Jaya Publications 123 ITD 0053 has held as under: The CIT(A) has set aside the assessment which means that he annulled the assessment, since he has not given any direction to redo the assessment. As such, the AO as no jurisdiction to pass any further order. He is duty-bound to follow the direction of the CIT(A) and he cannot sit over the order of the CIT(A), who is a superior authority. The remedy lies with the Department and he has to file an appeal against the order of the CIT(A) if they have any grievance. In the present case, instead of filing the appeal in time against the CIT(A) s order the AO made a fresh assessment without jurisdiction and which is against the law on the facts of the case and not sustainable in the eyes of law.-Fu Sheen Tannery Anr. vs. ITO (2003) 185 CTR (Cat) 76 : (2003) 262 ITR 456 (Cal) relied on 18. Considering the facts of the case in hand in totality as explained hereinabove in the light of the plethora of judicial decision discussed hereinabove. We are of the considered view that the AO has wrongly assumed jurisdiction in framing the assessment order dated 02.03.2015 u/s 143(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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