9911796707
TMI Blog2024 (10) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary as well as by virtue of invoking provisions of Right to Information Act, the AO failed to provide such information to the assessee that notice u/s 143(2) was issued by Assessing officer before passing assessment order. Appeal of the assessee is allowed. - Shri Pawan Singh, Judicial Member For the Appellant : Shri Rasesh Shah, CA For the Respondent : Shri Mukesh Jain, 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 learned Commissioner of Income Tax (Appeals)-4, Surat dated 07.12.2023 for Assessment Year (AY) 2008-09. The assessee has raised following grounds of appeal: 1. On the facts and circumstances of the case as well as on the subject, the learned CIT(A) has erred in confirming the action of assessing officer in re-opening assessment under section 147 by issuing notice under section 148 of the I.T. Act, 1961. 2. On the facts and circumstances of the case as well as law on the subject, the learned CIT(A) has erred in confirming the action of assessing officer in making addition of Rs. 24,64,125/- on account of bogus purchases. 3. It is therefore prayed that assessment fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation before Assessing Officer to provide copy of reasons recorded and a copy of notice under section 143(2), if any. No such copy of reasons recorded is provided nor made any response to such application. The assessee again vide application dated 05.07.2024, filed a provision of Right to Information Act, 2005 for seeking copy of notice under section 143(2), if any. In response to such application, the assessee was informed vide reply dated 11.07.2024 from Nodal Officer / ITO(HQ) in the Office Chief Commissioner of Income-tax, Ahmedabad wherein DCIT, Central Circle 2 was informed that required detail be sent to applicant/assessee as such information relates to Central Circle. The assessee received reply from the Office of DCIT, Central Circle - 2, Surat vide reply dated 16.08.2024 wherein it was informed that PAN of assessee was centralized to discharge from the Office of ITO, Ward 3(2)(6), Surat and he is in the process of collecting such information and was informed that information would be provided as soon as received. Copy of application dated 24.06.2024, filed before Assessing Officer as well as under Right to Information Act, 2005 dated 05.07.2024, reply of ITO(HQ) / Nodal O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d / restricted similar purchases to the extent of 6.00%. The assessee has already declared more than 6.00 % of the gross profit, therefore, even if, it is assumed that any disallowance warranted, the assessee declared much more gross profit, thus, no such disallowance warranted. 6. In support of Ground No.1 which relates to validity of reopening, the ld. AR of the assessee submits that Assessing Officer reopened the case on the basis of information of third party. The Assessing Officer has not verified the fact before reopening. The reasons recorded as no rational connection. The reasons recorded are mere repetition of Report of DDIT. Thus, the Assessing Officer made reopening on the basis of borrowed satisfaction based on third party information. To support his contentions, the ld AR for the assessee relied on the following decisions; ITO vs. Lakhmani Mewal Das 103 ITR 437 (SC) Ganga Saran Sons Vs. ITO 130 ITR 1 (SC) Bharatkumar Nihalchand Shah vs. ACIT 128 taxmann.com 228 (Guj.) Adani Power Maharastra Ltd. vs. ACIT 147 taxmann.com 583 (Guj.) CIT vs. National Organic Chemical Industries Ltd. 115 taxmann.com 245 (SC) CIT vs. Trend Electronics 379 ITR 456 (Bom.) Haryana Acrylic Manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the orders of lower authorities carefully. First, I will consider the application for admission of additional ground of appeal. In the application for admission of additional ground of appeal, the assessee has raised the plea that no notice under section 143(2) was issued by the Assessing Officer. I find that additional ground of appeal is purely legal in nature which goes to jurisdiction of Assessing Officer. It is settled law that legal issue can be raised even at this stage of second appeal. Thus, additional ground of appeal raised by assessee is admitted for adjudication. Now, adverting to considering the merit of additional ground of appeal. I find that notice under section 148 was issued to the assessee on 30.03.2015 to file return of income within 30 days of receipt of such notice. Though the assessee admittedly not filed return of income within time allowed in notice under section 148. It is matter of record that assessee filed application before Assessing Officer on 25.08.2015 stating therein that return filed on 27.09.2008 be treated as return in response to notice under section 148. I find that neither the application of assessee dated 25.08.2015 was rejected no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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