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TMI Blog2015 (10) TMI 2829X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice u/s 148 and subsequent proceedings are without jurisdiction and liable to be quashed - Decided against revenue. - ITA Nos. 922 & 923/LKW/2014 - - - Dated:- 7-10-2015 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER Appellant by Shri Ranjan Srivastava, DR Respondent by Shri P.K. Kapoor, CA O R D E R PER SUNIL KUMAR YADAV, JM. These appeals are preferred by the Revenue against the order of the CIT(Appeal)-II, interalia on the following grounds: ITA No.922/LKW/2014 In this appeal, the Revenue has raised the following grounds: 1. The Ld. Commissioner of Income Tax (Appeals)-II, Kanpur has erred in law and facts in treating the proceeding u/s 147/143(3) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... npur has erred in law and facts in treating the proceeding u/s 147/143(3) as Ultravires. 2. That the Ld. Commissioner of Income Tax (Appeals)-II, Kanpur has erred in law and on facts in. deleting the addition of Rs. 8,96,343/- where there is wrong deduction claimed by assessee and there is escapement of Income. Moreover, the issue of non deduction of TDS u/s 194H has come up after the nature of Rs. 14,71,214/- was explained by the assessee as commission paid which was not available at the time of original proceedings. 3. That the AO has rightly taken the recourse of section 147/148 to disallow the wrong claim of deduction u/s 80 IA made by the assessee of Rs. 8,96.343/- and to invoke the section 40(a)(ia) on commission amount of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the same therefore, the reopening is on account of change of opinion. In support of his contention, he placed reliance upon the judgments in the cases of Arun Gupta Vs. Union of India reported in 371 ITR 394 (Alld.), Tao Publishing (P.) Ltd. Vs. DCIT reported in 53 taxmann.com 146 (Bombay) and in the case of ACI Oils (P.) Ltd. Vs. DCIT reported in 57 taxmann.com 260 (Alld.). 3. Ld. DR on the other hand, has placed a reliance upon the orders of the CIT(A). 4. Having carefully examined the order of the lower authorities and the material available on record in the light of rival submission, we find that undisputedly, the assessment orders involved are 2006-07 2007-08 and the reopening was done vide notice dated 04.03.2013. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he has reasons to believe, he must also indicate that the assessee had failed to disclose fully and truly all material facts necessary for his assessment for that assessment year. If a notice u/s 148 has been issued without the jurisdictional foundation u/s 147 being available to the Assessing Officer, the notice and the subsequent proceedings would be without jurisdiction and would be liable to be quashed in a writ jurisdiction. Similar views were expressed in the judgment of the Hon ble Bombay High Court in the case of Tao Publishing (P.) Ltd. Vs. DCIT (Supra) and the judgment of the Hon ble jurisdictional High Court in the case of ACI Oils (P.) Ltd. Vs. DCIT (Supra). 6. Undisputedly in the instant case, nothing has been mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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