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TMI Blog2022 (2) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(3) r.w.s 147 of the Act, dated 22.11.2017 is quashed for want of valid assumption of jurisdiction by him. As we quashed the assessment framed by the A.O u/s 143(3) r.w.s 147, dated 22.11.2017, for want of jurisdiction on his part, therefore, we refrain from adverting to and therein adjudicating the other contentions so raised by him as regards the validity of the jurisdiction assumed by the A.O for framing the impugned assessment, as well as those advanced by him as regards the sustainability of the addition on the merits of the case, which, thus, are left open. Appeal of assessee allowed. - I.T.A. No. 342/(Asr)/2019 - - - Dated:- 21-2-2022 - Sh. Ravish Sood, Judicial Member And Dr. M. L. Meena, Accountant Member For the Appellant : Sh. Tarun Bansal, Advocate For the Respondent : Sh. Trilochan Singh PS Khalsa, DR ORDER PER RAVISH SOOD, JM The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), Bathinda, dated 22.02.2019, which in turn arises from the order passed by the A.O u/ss. 143(3)/147 of the Income Tax Act, 1961 (for short Act ), dated 22.11.2017 for Assessment Year 2010-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ignored that neither such finding is given by A.O nor any remand report was called for. 11. That the revenue blown hot cold by dropping the proceedings u/s 148 on one of the person of HUF Sh. Inderpal S/o Durga Parshad S/o Ram Kishan and require to dropping of proceeding in the case of appellant too. 2. Succinctly stated, on the basis of information received by the A.O, that the assessee who during the year under consideration had sold his share of land admeasuring 33 Bigha 12 Biswas [112,3/16 biswa part], within the Municipal limits of Bathinda [Code No. 0002 Sr. No. 0224], had though made cash transactions of ₹ 70,84,580/- in his Saving Bank A/c, but had failed to declare the capital gain qua the aforesaid sale transaction by filing his return of income, the A.O reopened the case of the assessee u/s 147 of the Act. Notice u/s 148, dated 29.03.2007 was thereafter issued by the Income-Tax Officer, Ward-II(1), Bathinda to the assessee after obtaining the approval of the Principal Commissioner of Income-tax, Bathinda, vide his letter No. Pr. CIT/BTI/Tech/151/2016-17/3749, dated 29.03.2017. In compliance, the assessee manually filed his return of income on 22.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me limit besides being legally valid as provided in Sec. 151 of the IT Act, 1961. Copy of the notices issued before 31.03.2017 and the copy of receipt issued by the postal authorities is also being enclosed for your reference. Moreover, as per the Hon ble Delhi High Court s order dated 15.01.2016 in a writ petition under Article 226/227 of thre Constitution of India (W.P 1569/2015 CM No. 2800/2015) in the case of Dushyant Kumar Jain Versus DCIT, it is held that once jurisdiction assumed by any Assessing Officer, the same jurisdiction should be continued with him only. Your attention is also drawn to the Hon ble Delhi High Court s decision vide its Order vide ITA No. 128 of 2016, dated 23.02.2017 in the case of Mega Corporation Ltd., where it has been held in unambiguous terms that in the light of Sec. 124(3)(a) of the Income-tax Act, 1961 an assessee is not entitled to question the jurisdiction of an Assessing Officer after the expiry of one moth from the date on which he is served a notice u/s 142(1) or 143(2) or 115WE(2) or after the completion of assessment, whichever is earlier. Moreover, your request for transfer of this case to the Income-tax Officer, Ward 1(3), Bathind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 22.11.2017 assessed the income of the assessee at ₹ 79,81,125/-. 5. Aggrieved, the assessee carried the matter in appeal before the CIT(A). Before the CIT(A), the assessee assailed both the jurisdiction assumed by the A.O for reopening of his case, as well as the sustainability of the addition made by him on merits. However, the CIT(A) not being persuaded to subscribe to the contentions of the assessee dismissed the appeal. 6. Being aggrieved with the order of the CIT(A) the assessee has carried the matter in appeal before us. Ld. Authorized Representative ( A.R , for short) for the assessee, at the very outset of the hearing of the appeal, on the basis of his multi facet contentions assailed the validity of the jurisdiction that was assumed by the A.O for reopening the case of the assessee u/s 147 of the Act, viz. that the reopening of the assessee s case is divorced from any independent application of mind by the A.O to the material available on record; that the Pr. CIT had granted the approval u/s 151 of the Act in a mechanical manner, i.e, without any application of mind; and that the A.O who had framed the assessment, viz. ITO, Ward- 1(3), Bathinda had wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II(1), Bathinda, vide his reasons to believe , dated 24.03.2017. Our attention was drawn by the ld. A.R to the respective reasons to believe recorded by the aforementioned officers, as well as the addition made by the A.O, i.e, the ITO, Ward-1(3), Bathinda while framing the assessment u/s 143(3) r.w.s 147, dated 22.11.2017. In sum and substance, it was the claim of the ld. A.R, that as the A.O had failed to make any addition qua the reason on the basis of which he had reopened the case of the assessee, therefore, the assessment order passed by him u/s 143(3) r.w.s 147, dated 22.11.2017 could not be sustained and was liable to be vacated. Apart from that, the ld. A.R had assailed the addition made by the A.O on merits. 7. Per Contra, the ld. Departmental representative supported the orders of the lower authorities. It was submitted by the ld. D.R that as the A.O had validly assumed jurisdiction and framed the assessment vide his order passed u/s. 143(3) r.w.s 147, dated 22.11.2017, therefore, no infirmity did emerge therefrom. Rebutting the claim of the ld. A.R that the A.O had obtained the requisite sanction u/s 151 from the Pr. CIT on 29.03.2017, i.e, subsequent to the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessee s bank account with State Bank Of Patiala, Branch : Grain Market, Bathinda, on the basis of which the case of the assessee was reopened u/s 147 of the Act, formed part of the sale consideration of ₹ 70,84,580/- (supra), therefore, it was incorrect on the part of the ld. A.R to claim that no addition was made w.r.t the reason on the basis of which the assessee s case was reopened u/s 147 of the Act. In order to fortify his aforesaid contention the ld. D.R had taken us through the relevant extract of the Cash book that was filed by the assessee s counsel in the course of hearing of the appeal before us. 8. We have heard the ld. Authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. As the assessee has assailed the validity of the jurisdiction assumed by the A.O, viz. ITO, Ward-1(3), Bathinda for reopening the assessee s case u/s 147 of the Act, therefore, we shall first deal with the same. 9. As is discernible from the records, the ITO, Ward-II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproval is discernible from the assessment order, nor anything in support thereof was placed on our record by the ld. D.R. In fact, as observed by us hereinabove, the A.O, i.e the ITO, Ward-1(3), Bathinda, in his order passed u/s 143(3) r.w.s 147, dated 22.11.2017, had referred about the approval that was obtained from the Pr. CIT, Bathinda vide the latter s office letter No. Pr. CIT/BTI/Tech /151/2016-17/3749, dated 29.03.2017. However, as observed by us hereinabove, i.e, while rebutting the claim of the ld. A.R that the ITO, Ward-1(3), Bathinda had issued the Notice u/s 148 of the Act on 24.03.2017, i.e, prior to obtaining of the approval u/s 151 by him on 29.03.2017, we had noticed that the said approval was in context of the Notice u/s 148, dated 29.03.2017 that was issued by the ITO, Ward-II(1), Bathinda. As the fact as regards the obtaining of the approval by the A.O, i.e, ITO, Ward-1(3), Bathinda could not be gathered from the body of the assessment order, therefore, in all fairness the ld. D.R was directed to produce the assessment record. On the next date of hearing of the appeal, the ld. D.R, as directed, produced the assessment records. After perusing the assessment reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of obtaining any separate sanction qua the reasons to believe , dated 14.03.2017, that were recorded by him, had issued Notice u/s 148, dated 24.03.2017 and framed the assessment vide his order passed u/s 143(3) r.w.s 147, dated 22.11.2017. In either of the situations the assumption of jurisdiction by the A.O, i.e, ITO, Ward-I(3), Bathinda, de hors obtaining of the requisite sanction u/s 151 of the Act, would be devoid and bereft of any force of law. A far fetched situation that had been canvassed by the ld. A.R before us, i.e, the ITO, Ward-I(3), Bathinda had pre-empted the grant of sanction by the Pr. CIT, Bathinda u/s 151 of the Act, and prior to obtaining of the same on 29.03.2017 issued the Notice u/s 148, dated 24.03.2017, though being beyond comprehension had been rejected by us, but then, if that be so, then too the assumption of jurisdiction by the A.O, i.e, issuance of Notice u/s 148, dated 24.03.2017 without obtaining the requisite sanction u/s 151 of the Act, i.e, prior to issuance of the said notice would be bad in the eyes of law. Be that as it may, we are of the considered view, that as the A.O in the present case before us had failed to obtain the approval of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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