9911796707
TMI Blog2023 (3) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawals and deposits by the assessee in his bank account. Further, it is stated that he had sold certain lands and the sale consideration was available with him to deposit such amount in the bank. Looking to the evidences submitted by the assessee it can be inferred that the assessee was having sufficient funds for making deposit coupled with the fact that there were withdrawals from the bank account. Hence, these facts ought to have been considered by the authorities below, which has not been considered. The addition made by the AO is not justified and the same is hereby deleted. Appeal of the assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer failed to issue notice u/s. 143(2) of the Act. Apropos to these grounds, the submissions dated 12.09.2022 of the assessee are as under : "1. In the present matter, order was passed by Ld. AO u/s. 143(3)/148 but no notice u/s. 143(2) was issued to the appellant. Any assessment/reassessment order passed by Ld. AO u/s. 143(3) without issuing notice, u/s. 143(2) is a nullity and the order passed is liable to be quashed. It is worth to mention here that the present issue is a legal one and it is settled law that legal issues can be raised first time before Hon'ble Tribunal. 1.1 When this issue was specifically raised before Hon'ble Tribunal, Hon'ble Bench directed Ld. D.R. to produce assessment records. After several adjournments, Ld. D.R. produced assessment records before Hon'ble Bench. Hon'ble Bench perused the assessment records and find that no notice u/s. 143(2) was issued by the Ld. AO. Order sheet entry dt. 6.12.2021 reads as under: "It is seen from Assessment Record that there is no order sheet regarding issuance of notice u/s. 143(2) of the Act. The Revenue is directed to file a copy of notice issued u/s. 143(2). Ld. DR had also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned DR opposed the submissions and also reiterated the submissions as made in the written submissions, reproduced below: "Factual Matrix: In this case, the assessee deposited a sum of Rs. 31,70,000/- in cash during the financial year 2006-07 relevant to the A.Y. 2007-08 in his S/B bank account No. 8622 maintained with Haryana Gramin Bank, Jhajjar. As per record, to enquire into the source of above deposit, various Notices were issued by the AO i.e. ITO Ward-4, Rohtak to the assessee but nothing was heard. Accordingly reasons for proceedings u/s. 148 were recorded by the AO on 13.03.2014 and necessary approval u/s. 151(1) of the competent authority i.e. JCIT, Rohtak Range, was obtained and thereafter, notice u/s. 148 was issued to the assessee on 18.03.2014 which was duly served upon the assessee through Speed Post, sent vide dispatch No. 12388 dated 18.03.2014. In response to notice issued, the assessee did not file his return of income. Again notice u/s. 142(1) was issued on 02.09.2014 and 20.10.2014 and served on the assessee. After that again another notice u/s. 142(1) of the Act was issued on 17.12.2014 and the same was served upon the assessee through speed po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee filed appeal before the Ld. CIT(A), Rohtak. But the said appeal was dismissed by the Ld. CIT(A) after examining all facts related to the case. During the appellate proceedings also the assessee failed to produce the requisite supporting evidences and witnesses at the Remand Report stage. Not issuing Notice u/s. 143[2]: Now before the Hon'ble Tribunal, the appellant assessee has raised this issue for the first time which was never raised either before the AO or the CIT[A], As such this issue does not emanate from the order of the Ld. CIT[A] which has been challenged in the subject appeal. Secondly, the notice u/s. 148 was issued on 18.03.2014 and return in response thereto was to be filed by 18.04.2014 which was not complied with. Instead it was on 25.02.2015 when the AR of the assessee, during the course of proceedings filed a copy of ITR dated 16.08.2007 requesting to treat the same as in response to notice u/s. 148, as is noted in the note sheet. Considering the shortage of time before the AO to complete the assessment proceedings, which were to get barred by limitation within one month from that date, the AR was asked to explain the source of cash deposited i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 143(2) of the Act. In fact, the Assessing Officer has the basic jurisdiction to assess the income in terms of section 147 and section 148 of the Act where he has reason to believe that the income has escaped assessment. On the submissions of non-issuance of notice under section 143(2) of the Act, we are of the view that the findings of the Tribunal in this regard are not as per the scheme of the provisions of sections 147 and 148 of the Act." 3. Josh Builders & Developers (P.) Ltd. Vs. PCIT [2017] 79 taxmann.com 435 (Punjab & Haryana)/[2016] 389 ITR 314 (Punjab & Haryana) (Copy Enclosed) Where Hon'ble P & H High Court held that assessee, having not raised any objection with regard to issuance and service of a valid notice during assessment proceedings and rather, without any objection, having voluntarily taken part in such proceedings, could not seek annulment of assessment proceedings on ground of non-service of notice. 6. I have heard the learned Departmental Representative and perused the material available on record. Assessee has taken a specific objection before me regarding validity of proceedings u/s. 147 of the Act. It is contended that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was again fixed for 25.2.2015. On 25.2.2015 the assessee filed written reply with a copy of the acknowledgement of the return already filed on 16.08.2007 may be treated as return filed in response to notice issued u/s. 148 of the Act. The said reply was examined and placed on record. On this date' the assessee was also supplied a copy of the reasons recorded for issue of notice u/s. 148 of the Act in his case. As per Note Sheet entry dated 23.02.2015 the assessee was also asked to explain the source of cash deposits in bank at Rs. 31,70,000/- as mentioned a copy of reasons supplied to him. The case was adjourned to 9.3.2015. On 09.03.2015 Shri P. Narang Advocate, AR of the assessee attended and requested for further time. The case was adjourned to 12.3.2015. On 12.3.2015 the assessee sought adjournment for 16.3.2015. On 16.3.2015 Shri Subhash Gujar, the assessee attended the assessment proceedings with Shri P. Narang, advocate. They submitted written reply alongwith various documents regarding sale of his agricultural land measuring 5 Kanal-09 Marla against which he filed copy of agreements from different purchasers for sale of said land to explain the cash deposits in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffalo on 30.10.2006 for Rs. 1,20,000/- is also not relied upon because the assessee submitted such deal on a plain papers, duly stamped, as in routine, no such receipts are taken except sale of animal in "cattle fair." Thus considering all the submissions offered by the assessee that the cash deposits to the extent of Rs. 31,70,000/- are not proved by documentary evidence and the above explanation offered by the assessee is rejected and it is held that these deposits are the income of the assessee earned from undisclosed sources not shown in the return and due to result of enquiries it was highlighted. This is treated as concealed income of the assessee earned from undisclosed sources Considering all the facts in mind it held that the deposit of Rs. 31,70,000/- has not been explained satisfactorily with any documentary evidence which is treated as concealed income of the assessee earned by undisclosed sources and not disclosed to the department. This is results of investigation when such huge cash deposits were ascertained in the name of the assessee. Thus the income of Rs. 31,70,000/- shown as cash deposit in the Bank account of the assessee, mentioned above, is assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was filed declaring income of Rs. 90,900/- and on 25.2.2015 it was stated that return already filed may be treated as return filed in response to notice u/s. 148 of the Act. Undisputedly the AO did not issue notice u/s. 143(2) of the Act. Now the issue to be determined is whether non-issuance of notice u/s. 143(2) is fatal to assessment framed by AO under the facts and circumstances of the case. 10. The Revenue has relied upon the judgment of Hon'ble Punjab & Haryana High Court rendered in the case of Josh Builders & Developers (P.) Ltd. (supra) to buttress the contention that assessee participated in assessment proceedings and no such objection was raised. Therefore, non issuance of notice u/s. 143(2) would not be fatal to the assessment framed by AO. This submission of the Revenue is contrary to the judgment of Hon'ble Supreme Court rendered in the case of ACIT Vs. Hotel Blue Moon (supra), wherein the Hon'ble Apex court has held that omission on the part of the Assessing Authority to issue notice u/s. 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice u/s. 143(2) of the Act cannot be dispensed with. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.08.2006 To self 534331 500000.00 530000.00 cr. 09.09.2006 By cash 12367.00 542367.00 cr. 19.09.2006 By cash 450000.00 992367.00 cr. 26.10.2006 To cash 900000.00 92367.00 cr. 30.10.2006 By cash 450000.00 542367.00 cr. 10.11.2006 To cash 200000.00 342367.00 cr. 20.11.2006 By cash 390000.00 732367.00 cr. 27.11.2006 By cash 250000.00 982367.00 cr. 02.12.2006 By transfer 424373.00 1406740.00 cr. 02.12.2006 By transfer 424373.00 1831113.00 cr. 28.12.2006 To cash 150000.00 1681113.00 cr. 03.10.2007 To cash 220000.00 1461113.00 cr. 18.01.2007 To cash 1350000.00 111113.00 cr. 02.03.2007 By cash 600000.00 711113.00 cr. 10.03.2007 By interest 8401.00 719514.00 cr. 14.03.2007 To cash 350000.00 369514.00 cr. 21.03.2007 To cash 150000.00 219514.00 cr. Total balance 3820000.00 4039514.00 219514.00 cr. 12. From the bank statement it is seen that there are withdrawals and deposits by the assessee in his bank account. Further, it is stated that he had sold certain lands and the sale consideration was available with him to deposit such amount in the bank. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, renders his claim unacceptable. 6.2.4 The assessee's claim of sale of cattle is also not acceptable in view of the fact that a receipt has been submitted and name of purchaser has been given. There is no proof that the assessee was in possession of the cattle. The assessee did not avail the opportunity given by the AO during remand proceedings substantiate the claim made by him in this regard. Thus the sale of cattle and deposit of Rs. 1,20,000/- is not found acceptable. 6.2.5 The assessee's claim of cash deposits on account of receipt of 'bayana' for purposed sale of agricultural land which later did not materialize and was cancelled and the money was refunded is considered and the documents submitted by him including copy of notarized 'ikrarnama' and bank statement showing the cash deposits on the dates of 'ikrarnama' have been examined. The assessee's explanation that the land sale did not materialize due to certain circumstances and the money was returned to the purchasers through panchayati/mutual settlement, as seen from the documents given where such cancellation of the proposed sale is recorded and signed by the parties, is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
