9911796707
TMI Blog2024 (6) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... raised seven grounds of appeal amongst which, the two issues emanates for our consideration, firstly, as to whether the ld. PCIT was justified in setting aside the assessment order dated 27.12.2019 passed by the Assessing Officer under section 143(3) r.w.s. 153C of the Act being erroneous and prejudicial to the interest of Revenue, non-est and non-service, secondly, on merits in the given facts and circumstances of the case. 3. The ld. AR Shri S. Sridhar, Advocate submits that the original assessment order dated 27.12.2019 passed by the Assessing Officer is non-est on the ground for not containing the signature of the Assessing Officer and for non-service of the order on the assessee. He has submitted that the assessee mentioned his e-mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, where hosting of the assessment order in the ITBA portal can be considered as one of the modes of services and not under the physical regime of assessment. He drew reference to the non-service of demand notice under section 156 of the Act either electronic mode or physical through post on the assessee. He argued that the revenue mixed up in the physical regime and electronic regime and completely adopted erroneous process. He argued that the authenticated order of the assessment order needs to be hosted in the ITBA portal in view of Rule 10 of e-Assessment Scheme. 5. On the other hand, the ld. DR Shri R. Clement Ramesh Kumar, CIT submits that the original assessment order dated 27.12.2019 passed by the Assessing Officer was served on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and perused the material available on record. 8. The first contention of the ld. AR is that the impugned order passed by the ld. PCIT is non-est and non-existence in the eye of law as the original assessment order dated 29.12.2019 passed under section 143(3) r.w.s. 153C of the Act is unsigned and unserved on the assessee. No doubt, the ld. DR placed on record, the report of the Assessing Officer that while passing assessment through online (ITBA) portal, there is no mandatory requirement of manually sending assessment order to the assessee as it was duplication of work. But, however, the ld. DR contended that in the physical assessment record, order dated 27.12.2019 was found to be signed and by mistake, the Assessing Officer uplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th law relating to share amounts of profit of Rs.. 45,56,962/- and nowhere in the order it was mentioned the assessment order is unsigned. The argument of the ld. AR is that since the order uploaded in the portal is unsigned and for non-service, vitiates the proceedings under section 263 of the Act, we note that as discussed above regarding the provisions under section 263 of the Act, nowhere it is mentioned that non-service of order and unsigned order of the Assessing Officer makes the proceedings under section 263 of the Act invalid. The requirement under section 263 of the Act, i.e., for initiating revision or assuming jurisdiction by the ld. PCIT, to call for the records and after examining of the same, having satisfied that it is a fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to add the said share of profit of Rs.. 45,56,962/- in his hands. Accordingly, the ld. PCIT issued notice under section 263 of the Act. We note that the assessee filed his submissions in response to the show-cause notice, which is reproduced by the ld. PCIT in the impugned order from page Nos. 5 to 7. On perusal of the same, we note that the assessee categorically pleaded that the proposed addition in respect of share of profits is exempt under section 10(2A) of the Act as it was separately assessed in the hands of the firm M/s. Cholan Auto Finance. Further, in para 5 of the impugned order, we note that the ld. PCIT has taken reference of statement of Shri Vijayan, who is partner-cum-employee of M/s. Cholan Auto Finance that the funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. AR that the proposed addition, as referred by the ld. PCIT, is exempted under section 10(2A) of the Act because the firm was assessed separately, consisting share of partners in its total income. When it taxed in the hands of the firm, the same cannot form part of total income of the partners. Therefore, the fact of whether the proposed share of profit of assessee of Rs.. 45,56,962/- was assessed in the hands of the firm being part of total income is not established. Further, the details of profits claimed to have been given to the assessee as loans, is also not established clearly. Thus, finding in order of Mumbai ITAT in the case of Aiswhwarya Rai Bachan reported in [2022] 135 taxmann.com 335 (Mumbai - Trib) as relied on by the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
