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TMI Blog2021 (9) TMI 1417X X X X Extracts X X X X X X X X Extracts X X X X ..... alid approval granted u/s 151 - satisfaction recorded by the Pr. CIT is separate and independent not having any influence. Hence, even if there is a satisfaction recorded by the Addl. CIT who is not a Competent Authority for granting sanction for issuing notice u/s 148 in this case the said satisfaction of Addl. CIT would not vitiate the satisfaction recorded by the Pr. CIT. Therefore, the satisfaction as recorded by the Pr. CIT at the time of granting the approval/sanction u/s 151 of the Income Tax Act manifests that it was an independent satisfaction based on the reasons recorded by the Assessing Officer. Even otherwise, the reasons recorded by the Assessing Officer prima facie makes out the case to form a belief that income assessable to tax as reflected in Form 26AS has escaped assessment because the assessee did not file any return of income u/s 139 of the Income Tax Act. From the Paper Book of the assessee, we further note that the sanction accorded by the Pr. CIT was communicated to the Assessing Officer through Addl. CIT vide letter dated 31.03.2017. Thus, it appears that the movement of the file from the ITO to Pr. CIT is rooted through Addl. CIT. Hence, we do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh after conducting a proper enquiry on this point. Needless to say the assessee be granted and appropriate opportunity of hearing before passing the fresh order. Appeal is partly allowed for statistical purposes. - I.T.A No.9734/Del/2019 - - - Dated:- 24-9-2021 - Shri R.K. Panda, Accountant Member And Shri Vijay Pal Rao, Judicial Member For the Assessee : Shri M.R. Sahu, CA For the Revenue : Shri Prakash Dubey, Sr. DR ORDER PER VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 24th September, 2019 of Ld. CIT(Appeals) for the AY 2010-11. There is a delay of 10 days in filing the present appeal. The assessee has filed an application for condonation of delay which is supported by an Affidavit. 2. We have heard the Ld. AR as well as the Ld. DR on condonation of delay and carefully perused the contents of the application and Affidavit filed by the assessee explaining the cause of delay. 3. After perusal of the reasons explained by the assessee, we are satisfied that the assessee was having a reasonable cause for not presenting the appeal within the limitation period. Accordingly, in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.4. That on the facts and circumstances of the case and in law the Ld. CIT(A) has grossly erred in holding that amount of Rs. 65,02,177/- incorrectly reflected in Form 26AS ought to be included in income even though it has not been received by the assessee-appellant. 2.5. That on the facts and circumstances of the case and in law the Ld. CIT(A) has further grossly erred in relying on the judgments totally inapplicable to the facts of the case of the assessee-appellant accordingly assessee - appellant prays for deletion of Rs. 65,02,177/- 3. That the assessee-appellant craves leave to add, alter or withdraw any ground of grounds of appeal before or at the hearing of the appeal. 4. Apart from the grounds raised in Form No. 36 above, the assessee has also raised additional grounds vide application dated 14th September, 2021 which are as under: - 1. That the CIT(A) erred on facts and in law in upholding the validity of the reassessment order dated 08/12/2017 passed by the assessing officer under section 143(3) read with section 147 of the Income-tax Act, 1961, without appreciating the facts that under section 151(1) approving authority towards income escaped assessment s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing assessment order under section 143(3) read with section 147 was illegal, bad-in-law, void ab initio and liable to be quashed. AR of the assessee is humbly praying before your good self to accept the additional grounds of appeal raised before the date of hearing of appeal having regard to the ratio of the decision of the Hon'ble Supreme Court in the case of National Thermal Power Corporation vs. CIT (1998) 229 ITR 383 (SC), CIT-III, Pune Vs. Sinhgad Technical Education Society (2017) 397 ITR 344 (SC) VMT Spinning Co. Ltd. Vs. CIT (2016) 389 ITR 326 (P H.HC.). 5. The additional ground nos. 1 2 are in the nature of elaboration of ground no. 1 originally raised by the assessee challenging the validity of reopening of the assessment. We note that the additional grounds raised by the assessee are purely legal in nature and does not require any verification of new facts or material. After hearing both the parties on the admissibility of the additional grounds, we find that the assessee has made out the case for admission of the additional ground in view of the decision of the Hon ble Supreme Court in the case of NTPC Vs. CIT 229 ITR 383. Accordingly, the additional ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction recorded by the ACIT is not valid due to the reasons that the Addl. CIT was not competent to grant the sanction. It would not affect the validity of the approval granted by the Pr. CIT. Thus, the Ld. DR has submitted that this is not the case of grant the sanction by unauthorized Income Tax Authority but the file was moved through the office of the ACIT and in this process the Addl. CIT has also recorded his satisfaction. As regards the objection of mechanical approval granted by the Pr. CIT the Ld. DR has submitted that the Pr. CIT has duly recorded his satisfaction in clear terms and, therefore, it cannot be regarded as grant of approval/sanction mechanically. He has further contended that the satisfaction of Pr. CIT is not require to be in elaborate words in support of his contention he has relied upon the decision of the Hon ble Delhi High Court in the case of E-X Seed Technologies Device Pvt. Ltd. Vs. ACIT 422 ITR 355. Thus, the Ld. DR has submitted that while granting sanction u/s 151 the Pr. CIT was not required to provide elaborate reasoning to arrive at the finding of approval when he was satisfied with the reasons of reopening recorded by the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval granted u/s 151 of the Income Tax Act. It is pertinent to note that the assessee has not disputed the facts as recorded in the reasons recorded for reopening of the assessment except the explanation on the merit of the issue that the amount shown in Form No. 26AS was not entirely received by the assessee as one of the cheques got dishonored. The assessee has basically disputed the validity of the sanction of Pr. CIT for issuing the notice u/s 148. For ready reference, we reproduce para 12 and 13 of the proposal sent by the Assessing Officer for approval as under: 12. Whether the Addl. Commissioner is satisfied on the reasons recorded by the ITO that it is a fit case for the issue of a notice under section 148. In view of the reasons recorded by the AO, I am satisfied that it is fit case for issue of notice u/s 148. Sd/- (Saroj Kumar Dubey) Addl. CIT, Range-25, New Delhi. 13. Whether the Addl. Commissioner is satisfied on the reasons recorded by the ITO that it is a fit case for the issue of a notice under section 148. As per reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of DIT Vs. Society for Worldwide Inter Bank Financial, Telecommunications 323 ITR 249. The Ld. AR has pointed out that the assessee filed the return of income on 14.11.2017 and Assessing Officer has issued notice u/s 143(2) on 16.11.2017 which shows that the notice u/s 143(2) was issued by the Assessing Officer without verification of the return of income filed by the assessee. He has also referred to the order sheet entries of the assessment record which shows that the AO has issued the notice u/s 143(2) on 16.11.2017. Thus, the Ld. AR has submitted that the notice issued u/s 143(2) is invalid and consequently, the entire reassessment proceedings are vitiated and liable to be quashed. 14. On the other hand, the Ld. DR has submitted that the assessee has not filed any return of income u/s 139 of the Income Tax Act and only return of income was filed by the assessee was after more than six months of the notice issued u/s 148 of the Income Tax Act. The assessee has filed the return of income electronically (online) and, therefore, there is not time gap between the filing of return by the assessee and access of the same to the Assessing Officer. When there is no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice P. Ltd. on 07.11.2009 and, therefore, the assessee has not received any amount towards contract received as shown in the Form No. 26AS. So far as the dishonor of cheque is concerned he has also referred to a police complaint filed by the assessee against the said company for giving false information in Form No. 26AS. Therefore, the Ld. AR has submitted that the AO has made the addition of the amount which is not an income of the assessee. He has further contended that in the remand proceedings the details required for examination of this fact were also not collected and, therefore, the CIT(A) has confirmed the addition without considering the correct facts that the assessee has not received the alleged amount as part of contract receipts. Nothing conclusive has come out in the remand proceedings and the Assessing Officer has accepted the fact that the statement of one Shri Shailesh Dheeraj was recorded by ACIT, Circle 5(1), Bangalore but he had stated that he had no knowledge of the current status of the company. The assessee has pleaded that in the absence of any material brought on record by the AO to show that the assessee has actually received the alleged amount the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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