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TMI Blog2023 (12) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... person as well as the notice under section 148 was not issued by a competent jurisdictional Assessing Officer. Therefore, the reopening as well as issuance of notice under section 148 is bad-in-law. Since the re-opening u/s 147 and issuance of notice under section 148 is bad-in-law, subsequent action initiated thereto have become ab initio. Considering the fact that we have held the validity of re-opening and issuance of notice under section 148 had invalid, therefore, subsequent action has become ab initio and the ground of assessee succeeds on primary contention raised - Appeal of assessee is allowed. - Shri Pawan Singh, Judicial Member And Dr Arjun Lal Saini, Accountant Member For the Assessee : Shri Sapnesh R Sheth, CA For the Revenue : Shri Vinod Kumar, Sr-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of National Faceless Appeal Centre, Delhi [for short to as NFAC/Ld. PCIT ] dated 10.08.2023 for assessment year 2007-08 in confirming the addition for bogus purchases. The Assessing Officer passed assessment order under section 143(3) of the Income Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andi of entry provider. 3. Aggrieved by the addition made in the assessment order, the assessee filed appeal before Ld.CIT(A). The case of assessee migrated to NFAC. Before NFAC/Ld.CIT(A) the assessee challenged the validity of re-opening under section 147 and issuance of notice under section 148 thereto as well as addition on merit. The assessee also challenged the action of Assessing Officer in not not serving the assessment order and demand notice in time . Before NFAC/Ld.CIT(A) the assessee filed detailed written submission as recorded on pages 2 to 4 of impugned order. In the submission, the assessee submitted that he was engaged in the business of trading and manufacturing of bullion, precious stones, studded jewellery, gold and diamond ornaments, as a proprietary concern Suchi Gems. The assessment was completed by ACIT/Assessing Office, Surat on 30.12.2009 under section 143(3) by making addition of Rs. 90,40,927/- on account of alleged unverifiable purchases from two parties. The assessee again submitted that he has filed conformation, copy of ledger and bank statement to substantiate such purchases. The Assessing Office issued notice under section 133(6), which was duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and PAN even does not contain the information whether notice under section 148 was issued after the necessary satisfaction or approval of competent authority. The assessment of assessee for assessment year 2007-08 was re-reopened vide impugned notice issued on 29.03.2014. Admittedly, it was issued after four years from the end of relevant assessment year and no approval of competent officer was obtained as required under section 151(2) of Income Tax Act. The notice under section 148 was issued by officer, who was not having jurisdiction over the Assessing officer and no other notice under section 148 was issued by a competent Assessing Officer. The assessee requested to provide for reasons recorded. The reasons recorded was provided to assessee along with letter dated 17.08.2014, copy of reasons recorded is filed at page-42 of paper book. The reasons recorded are contradictory in itself. In para-1, the reasons indicate that information was received from DDIT (Investigation) Mumbai and in para-3 which disclosed that information was from DDIT (Investigation). Admittedly, there is no reference in the reasons recorded that any satisfaction / approval or sanction was obtained by Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. In the remand report, the Assessing Officer accepted that assessment order dated 31.03.2015 was despatched on 01.04.2015 at 1.34 hours through RMS post office, Surat Railway Station. The Assessing Officer also accepted the fact that about issuance of notice under section 148 by ITO Ward-33(2) New Delhi on 29.03.2014, copy of such remand report is filed at pages no.63 to 67 of the paper book. The ld AR for the assessee submits that the reopening under section 147 as well as issuance of notice under section 148 is invalid and action of assessing officer is void-ab initio. 8. On the other hand, Ld. Sr -DR for the Revenue supported the order of lower authorities. The Ld. Sr DR for the revenue submits that so far as sufficiency of reasons are concerned, at the time of reopening, Assessing Officer is required to consider the information whether the income chargeable to tax has escape assessment or not. In the present case, information was received from DIT(Inv), Mumbai as well as DIT(Inv.) New Delhi about the accommodation entries provided by Rajendra Jain group. As the alleged material / jewellery / goods were purchased by assessee in Delhi branch, the information was received fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to assessment was available with the Assessing Officer in the original assessment completed under section 143(3) of the Act. Moreover, the Assessing Officer has nowhere recorded that he obtained any sanction/ approval from Joint-Commissioner of Income-tax as mandated under section 151(2). We further find merit in the submission of Ld. AR of the assessee that jurisdictional Assessing Officer in case of assessee lies with Assessing Officer at Surat. However, notice under section 148 was issued by Assessing Officer, i.e., ITO Ward-33(2), New Delhi. Thus, the reopening is not only suffering by satisfaction from proper approval by competent person as well as the notice under section 148 was not issued by a competent jurisdictional Assessing Officer. Therefore, the reopening as well as issuance of notice under section 148 is bad-in-law. Since the re-opening under section 147 and issuance of notice under section 148 is bad-in-law, subsequent action initiated thereto have become ab initio. 10. Considering the fact that we have held the validity of re-opening and issuance of notice under section 148 had invalid, therefore, subsequent action has become ab initio and the ground of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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