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TMI Blog2024 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 148(A) (d) and the Final Order passed u/s 148(A) (d) on 27.03.2023 for AY 2019-20 can both be looked into in appeal that is pending before the Commissioner of Income Tax. The protective Assessment Order that has been issued u/s 147 read with Section 144 B, has also been challenged in an appeal before the CIT. A show cause notice issued for imposing penalty for AY 2019-20 which has been challenged could not have been issued unless the Assessment Order for the AY 2019-20 had been finalised in appeal. We have come to this conclusion on the basis of observations made in Bhailal [ 2014 (10) TMI 621 - GUJARAT HIGH COURT ] The show cause notice does indeed say that in case the petitioner has filed an appeal or has filed objections, copy of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 148A clause (b) of the Income Tax Act, 1961. (Annexure No. 1). (ii). to issue a writ order or direction in the nature of certiorari to quash the impugned order dated 27.03.2023 for the Assessment Year 2019-20 respectively passed under section 148A clause (d) of the Income Tax Act, 1961. (Annexure No. 2). (iii). to issue a writ order or direction in the nature of certiorari to quash the impugned consequential notice U/s 148 dated 27.03.2023 for A.Y. 2019-20 for re-assessment of the case of petitioner U/s 147 of the Income Tax Act. (Annexure No.3). (iv). to issue a writ order or direction in the nature of certiorari to quash the show cause notice for penalty dated 18.04.2024 for AY 2019-20. (Annexure No. 13)." 3. In addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh banking channel. 5. The petitioner has invested only Rs. 41 lakhs in Omaxe Group through banking channel. In the year 2022, a search was conducted by the Income Tax Department against various offices and residential premises of the Omaxe Group. During search operations, certain excel sheets were found by the Income Tax Department and on the basis of such papers, the Income Tax Department had issued a notice for re-assessment to the petitioner under Section 147 for income that has escaped from assessment earlier. 6. The allegation against the petitioner is that she has received an un-accounted cash of Rs. 4,10,00,000/- from Omaxe Group on 31.10.2018 which she had previously deposited in cash in Omaxe Group on 03.11.2016. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng penalty as has been done by the Department on 18.04.2024 and therefore, the said show cause notice has also been challenged on the ground of jurisdictional error. It has been argued that the penalty notice under Section 271 AAC can be given only when income is determined finally against the Assessee including income under Section 69 of the Act. No penalty notice can be issued on an uncertain Assessment Order as no final or substantive assessment order has yet been issued. There can be no protective penalty order although there can be a protective Assessment Order. 9. Learned counsel for the petitioner has placed reliance upon the judgment passed by the Constitution Bench of Hon'ble Supreme Court in the case of Lalji Haridas ; Chhota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had deposited Rs. 41 lakhs through banking channel on which she has earned interest can be raised before the appellate authority, i.e. the Commissioner of Income Tax in appeal filed by the petitioner already. It has been pointed out that the final Assessment Order has not been challenged and a show cause notices issued alone have been challenged before this Court. A show cause notice dated 15.03.2023 and 27.03.2023 for Assessment Year 2019-20 merged with the final order that has been passed against which appeal has also been filed by the petitioner. 12. It has also been argued on the basis of judgment rendered by the Division Bench of this Court in Writ Tax No.968 of 2023 (Vivek Saran Agarwal vs. Union of India and 3 others) decided on 03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons conducted on Omaxe Group, some papers were discovered which reveals that the petitioner had earned an annual income as interest of Rs. 13 lakhs on her investment made in Omaxe Group and therefore, the Assessing Officer presumed that there was more investment made in cash than has been shown through banking channel as 41 lakhs since 2016 by the petitioner. 14. Learned counsel for the petitioner has stated that no such presumption can be raised without recording a finding of the amount of cash that was discovered to have been invested by the petitioner since 2016. He has also pointed out that such income of Rs. 13 lakhs for the year 2017-18 has been derived on the basis of investments made from time to time by her husband in Fixed Deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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