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TMI Blog2024 (11) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... d by provisions of section 292BB of the Act. See LAXMAN DAS KHANDELWAL [ 2019 (8) TMI 660 - SUPREME COURT] Reliance placed by the DR on section 292BB of the Act would not rescue the ld AO if there is a defect in assuming jurisdiction per se. Accordingly, we quash the entire assessment framed in the hands of the assessee for the Asst Year 2016-17. The grounds raised by the assessee in his cross objections are allowed. - Shri M. Balaganesh, Accountant Member And Shri Vimal Kumar, Judicial Member For the Assessee : Shri Rajeev Saxena, Adv For the Revenue : Ms. Sumangla Saxena, Adv ORDER PER BENCH 1. The appeal in ITA No.623/Del/2024 filed by the revenue and CO No. 52/Del/2023 filed by the assessee for AY 2016-17, arise out of the order of the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ld. NFAC , in short] in Appeal No. ITBA/NFAC/S/250/2023-24/1058801500(1) dated 15.12.2023 against the order of assessment passed u/s 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) dated 06.12.2018 by the Assessing Officer, ACIT, Circle-21(1), New Delhi (hereinafter referred to as ld. AO ). 2. At the outset, there is a delay of 7 days in filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual Compulsory Guidelines of CBDT issued vide Instruction No. 5/2017 dated 07/07/2017 . Date of compliance for the assessee was mentioned as 29.9.2017 itself at 5.04 P.M. b) Notice u/s 143(2) of the Act dated 29.9.2017 by DCIT, Circle 21(1), New Delhi wherein it has been clearly mentioned that the case was selected under Compulsory Manual Selection of cases for Scrutiny on the basis of parameter at Para 1(vi) of the Manual Compulsory Guidelines of CBDT issued vide Instruction No. 5/2017 dated 07/07/2017 . Date of compliance for the assessee was mentioned as 10.10.2017 at 12.30 P.M. 6. The revenue before us was not able to place on record any notice u/s 143(2) of the Act issued on 15.9.2017 as mentioned in the assessment order. Even the factual report furnished by the ld AO dated 21.10.2024 states only the notice u/s 143(2) of the Act dated 29.9.2017 issued in accordance with Para 1(iii) of Manual Compulsory Guidelines of CBDT issued vide Instruction No. 5/2017 dated 7.7.2017. The factual report of ld AO also says that no approval is required to be obtained by the ld AO from the concerned jurisdictional Principal Commissioner of Income Tax (PCIT) for selecting the case for scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for search and seizure was executed u/s 132 or 132A of the Act. (iv) Return filed in response to notice u/s 148 of the Act. (v) Cases where registration/approval under various sections of the Act such as 12A, 35(1)(ii)/(iii), 10(23C) etc. of the Act have not been granted or have been cancelled/withdrawn by the competent authority, yet the assessee has been claiming tax exemption/ deduction in the return. However, where such order of withdrawal of registration/approval has been reversed/set-aside in appellate proceedings, those cases will not be selected under this clause. (vi) Cases in respect of which specific and verifiable information pointing out tax-evasion is given by any Government Department/Authority. However, before selecting a case for scrutiny under this criterion, Assessing Officer shall take prior administrative approval from the concerned jurisdictional Pr. CIT/Pr.DIT/CIT/DIT. 2. Computer Aided Scrutiny Selection (CASS): Cases are also being selected under CASS-2017 on the basis of broad based selection filters and in a non-discretionary manner in two categories viz. Limited Scrutiny Complete Scrutiny. List of such cases is being separately intimated by Pr.DGIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Central Circle, Noida, it is found that A search and seizure operation u/s 132 of the I.T. Act, 1961 was conducted on 30.09.2015, during the post search proceedings it was found that the assessee advanced sum of Rs. 12,25,00,000/- to M/s Airwill Business Park Pvt. Ltd. during the F.Y. 2015-16. The same was admitted and claimed as by Sh. Vikash Bhagat Director, Airwill Group of Companies in his statement. M/s Airwill Business Park Pvt. Ltd. also paid interest @ 12% per annum on the aforesaid money advance of Rs. 12,25,00,000..... 4.3 Thus the appellant's contention taken in Ground No. 1 and statement of facts information from the DCIT, Central Circle, Noida and which was clearly mentioned in the impugned order. When an Assessing Officer receives any information from another wing of the department it is obviously for the purpose of verification of the same. Although, the appellant has relied upon several judicial pronouncements in his submission, the question of application of the case laws relied upon does not arise in this present case due to the above. Considering facts and circumstances of the case, Ground No. 1 taken by the appellant stands dismissed. 9. Hence it is very c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 272 to have that the circulars issued by the Central Board of Direct Taxes (CBDT) binding on the officers of the Income-tax Department. To the same effect is the decision of the Supreme Court in UCO Bank v. CIT [1999] 237 ITR 889. 2. The respondent-assessee's return was in the instant case taken up for scrutiny in violation of the Central Board of Direct Taxes circular according to which if the returned income is 30 per cent more than the income of the earlier assessment year, the case of the assessee should not be scrutinised under Instruction No. 1922, dated 9-3-1995, extended the operation of the circulars to the assessment year 1995-96 also as is evident from the following paragraphs appearing in the same : Under Board's Instruction No. 1917, dated 3-6-1994, certain categories of cases were kept outside the scope of sample scrutiny during the financial year 1994-95. On such category consisted of those assessee s who declared a total income for the assessment year 1994-95 that was more by 30 per cent of the total income returned for the assessment year 1993-94 subject to the conditions that : (a) the income for both the assessment years exceeded the basic exemption limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in any proceeding or inquiry under this Act that the notice was (a) Not served upon him; or (b) Not served upon him in time; or (c) Served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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