9911796707
TMI Blog2022 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to have never been issued. The impugned order is hit by this mandate of the Board and, therefore, we are inclined to adjudicate Ground No. 8 [supra] in favour of the assessee by holding that the order dated 15.10.2019 framed u/s 147/144C(13)/143(3) of the Act is invalid and deemed to have never been issued as it fails to mention DIN in its body by adhering to Circular No. 19/2009 dated 14.08.2019. - ITA No. 1542/DEL/2020 - - - Dated:- 19-9-2022 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER Assessee By : Shri Kanchun Kaushal, FCA Ms. Shruti Khimta Department By : Ms. Anupama Anand, CIT- DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the assessee is preferred against the order dated 15.10.2019 framed u/s 147/144C(13)/143(3) of the Income-tax Act, 1961 [hereinafter referred to as 'The Act']. 2. The grievances of the assessee read as under: 1. GENERAL 1.1 That, on the facts and in the circumstances of the case and in law, the order of the learned AO dated October 15, 2019 passed under section 147/ 1440(13)7143(3) of the Income-tax Act, 1961 ( the Act ) in respect of AY 2011-12 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, on the facts and in the circumstances of the case and in law, the learned AO/ Hon ble DRP erred in imposing tax on capital gains in India in the hands of the Appellant when the learned AO/ Hon ble DRP has itself admitted that the capital gains in India was taxable in the hands of the holding company i.e., Brandix International Limited ( BIL ). 5.2 That, on the facts and in the circumstances of the case and in law, the learned AO/ Hon ble DRP erred in holding that the decision to buy-back shares by BAIPL was taken on January 19,2010 being prior to the date (March 30, 2010) of gift of shares by BIL to the Appellant. 6. OTHER 6.1 That, on the facts and in the circumstances of the case and in law, the learned AO erred in levying interest under section 234A of the Act. (Tax effect: INR 4,48,83,360) 6.2 That, on the facts and in the circumstances of the case and in law, the learned AO erred in levying interest under section 234B of the Act. (Tax effect: INR 5,77,87,326) 6.3 That on the facts and in the circumstances of the case and in law, the learned AO has erred in initiating proceedings under section 27i(i)(c) of the Act. The grounds of appeal mentioned above are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We have carefully perused the additional grounds of appeal raised by the assessee mentioned hereinabove. The Hon'ble Supreme Court in the case of National Thermal Power Corporation 229 I TR 383 has laid down the following ratio: 7. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner of Income-tax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 5. In light of the above ratio, we find that this Tribunal is not required to verify any new facts. Therefore, the additional grounds raised are admitted. 6. It would be pertinent to adjudicate Ground No. 8, since it goes to the root of the matter. Ground No 8 reads as under: 8. Ground No. 8: On the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no communication shall be issued by any income tax authority relating to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the 1 51 day of October, 20 19 unless a computer-generated Document Identification Number (DIN) has been allotted and is duly quoted in the body of' such communication. 3. In exceptional circumstances such as, - (i) when there are technical difficulties in generating /allotting/ quoting the DIN and issuance 0r communication electronically; or (ii) when communication regarding enquiry, verification etc. is required to be issued by an income-tax authority, who is outside the office, for discharging his official duties; or (iii) when due to delay in PAN migration, PAN is lying with nonjurisdictional Assessing Officer; or (iv) when PAN of assessee is not avail able and where a proceeding under the Act (other than verification under section 131 or section 133 of the Act) is sought to be initiated; or (v) When the functionality to issue communication is not available in the system, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considered opinion, only those circumstances which have been mentioned therein would be considered for non-mentioning of DIN. 10. In Para 3 itself, the Board has made it very clear that in cases where communication is issued manually, it may be done only after obtaining necessary approval of the relevant authorities and communication so issued must indicate the exceptional circumstances provided in the Circular itself. It has been made very clear by the Board that any communication which is not in conformity with Para 2. and 3 of the Circular shall be treated as invalid and shall be deemed to have never been issued. 11. The impugned order is hit by this mandate of the Board and, therefore, we are inclined to adjudicate Ground No. 8 [supra] in favour of the assessee by holding that the order dated 15.10.2019 framed u/s 147/144C(13)/143(3) of the Act is invalid and deemed to have never been issued as it fails to mention DIN in its body by adhering to Circular No. 19/2009 dated 14.08.2019. 12. Ground No. 8 is, accordingly, allowed and without going into merits, the assessment order is treated as null and void. 13. In the result, the appeal of the assessee in ITA No. 1542 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
