9911796707
TMI Blog2024 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 156 in legal existence. There are identical judgments of various benches on this issue, that the basic requirement is the quoting of the DIN number on the body of the assessment order and on the demand notice. Subsequent generation of DIN either on the same day or next day and intimated to the assessee by way of separate communication does not satisfy the conditions of para 3 and 4 of the said circular. Thus, we hold that the assessment order u/s 144/ 147 dated 25/11/2019 and the demand notice u/s 156 dated 26/11/2019, (in Form - 7), cannot be legally sustained and it has to be treated that both has never been issued and will cease to have effect in the eyes of law. Legality of notice issued u/s 148 - As pertaining to the recorded reasons (undated) and the corresponding approval granted by the Ld. PCIT, Jammu, dated 26/07/2018, and we are in agreement with the assessee that there has not been any proper application of mind resulting in an objective satisfaction of the higher authority, and according approval to an incorrect figure of quantum of income which had escaped assessment, which are at great variance with each other, as mentioned in approval and recorded reasons, canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7541/- declared in the return of income filed u/s 44AD on presumptive taxation basis. 6. That the Ld. CIT(A) has erred in confirming the addition of Rs. 1389863/- on account of net profit rate of 8% on entire deposits of Rs. 17373286/- without providing the benefit of income of Rs. 500000/- declared in the return or income. 7. That the Ld. CIT(A) has erred in confirming the addition of Rs. 1389863/- on account of 8% net profit on entire deposits of Rs. 17373286/- ignoring contra entries, rotation of funds and other receipts which do not constitute turnover. 8. That the Ld. CIT(A) has erred in confirming the addition of Rs. 1389863/- merely on the basis of surmises and conjecture without any independent application of mind. That the CIT(A) has ignored that the notice u/s 143(2) was issued merely within two days of filing of return of income and as such, the assessment order passed without application of mind by the AO is bad in law. 9. That the appellant craves leave to add or amend the grounds of appeal before the appeal is heard and disposed off. 4. It is seen that on the day before the date of hearing on 11th September, 2024, the assessee has filed an additional ground of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices issued u/s 148, 142(1), u/s 143(2), copy of computation of tax, copy of DN u/s 156, and copy of letter of the ITO, ward 2(3), Jammu, stating that common DIN has been generated for the assessee dated 25/11/2019 and has also filed a written submission of 22 pages, in respect of his grounds of appeal which are taken on record. 10. The Ld. AR of the assessee requested to take up ground number - 2, first of all, which is related to non-issue or non-mentioning the DIN in the body of the assessment order passed u/s 144/147 and also non mentioning the DIN on the face of Demand Notice issued u/s 156 of the Act 61, which is not as per compliance to CBDT Circular No 19/2019 dated 14th August, 2019. 11. The Ld. AR submitted with reference to the assessment order and the demand notice issued in the instant case, (placed in paper book page 15 to 19 and in page 24, respectively) that it does not bear the DIN, neither on the face of the assessment order nor on the face of the demand notice. He specifically refers to paragraph - 4 of the circular no 19/2019 where the board has specifically stated that any communication issued after 1st October, 2019, which is not in confirmatory with para n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O 3673/Mum/2023 Co No 122/ Mum / 2023, order dated 18/12/2023. 17.1 In an almost identical issue where common DIN has been generated for issue of a letter for all the communications relating to assessment order, DN and Computation, the ITAT/ Mumbai Bench has held as under : Further, it is pertinent to note that para 2 of CBDT Circular No.19 of 2019 specifically mentions that the computer- generated DIN is to be duly quoted in the body of communication, which in the present case is the assessment order dated 05/12/2019. Therefore, we are of the considered view that the intimation letter dated 09/12/2019 intimating that the DIN generated in respect of the computation sheet may be treated as common DIN for the relevant order and all its annexures is not sufficient compliance with the aforesaid Circular No.19 of 2019, as no DIN is mentioned in the body of assessment order passed on 05/12/2019. Accordingly, the assessment order dated 05/12/2019 passed under section 143(3) read with section 147 of the Act is set aside as being not in compliance with the CBDT Circular No.19 of 2019. 18. Thereafter, reference has been drawn to the decision of the ITAT Chandigarh Bench in the case of SPS St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed. 19. It has been further pointed out by the assessee that in the instant case that the assessment order has been passed on 25/11/2019 u/s 144 / 147 of the Act 61, and the letter for DIN was also generated on the same date 25/11/2019, but the notice of demand u/s 156 has been generated on 26/11/2019, (as evident from the DN u/s 156 enclosed in Paper book page - 25), meaning thereby, that on the date of generation of DIN, ( which was communicated by letter dated 25/11/2019 ) there was in effect no demand notice u/s 156 of the Act 61, in existence. 20. As such the Ld. AR prayed for deletion of the order on the ground of non- issue of separate DIN in separate communication, relating to separate documents, of assessment order, and demand notice, both issued under separate sections of the Act 61, which is not in compliance with CBDT circular 19/ 2019, and hence it shall be deemed to be held that assessment orders and demand notices, has never to been issued. 21. On the other hand the Ld. DR relied on the order of the Ld CIT ( A ) and argued that the common DIN generated by the AO on the same date, in relation to the same assessment order, demand notice and computation of income, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently and generation of intimation to be sent to assessee are of no consequence for purpose of assessment and raising demand. Similar views has been taken in the case of (c) M/s Nova Properties Pvt Ltd vs PCIT - 3, Ahmedabad (2024) TMI 689- ITAT Ahmedabad, (d) Sutherland Global and Others ITAT / Chennai (TS -787-ITAT-2023 CHNY, (e) Kellar Asia Pacific Limited (TS - 711-ITAT-2023 Delhi) 23. Respectfully following the observation of the Hon ble High courts referred to in above paragraphs and the views taken by the other coordinate benches of the tribunal, we hold that the assessment order u/s 144/ 147 dated 25/11/2019 and the demand notice u/s 156 dated 26/11/2019, (in Form - 7), cannot be legally sustained and it has to be treated that both has never been issued and will cease to have effect in the eyes of law. 24. Now, coming to the aspect of the additional ground taken by the assessee and admitted by us being a legal issue, the assessee has raised objections to the fact that reasons has been recorded in respect of transactions of Rs. 1,70,59,886/- while approval has been granted in respect of amount of Rs. 22,36,520/-. 25. The Ld. AR of the assessee took us to the form for rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he approval order, in tandem, and they should have refused approval or sent application back to the AO for filing the correct form of approval, and in such circumstances notice issued u/s 148 is to be quashed, because there has been no application of mind at any stage. 29. On the other hand the Ld. DR could not controvert the arguments regarding the discrepancies pointed out by the Ld. AR, existing in the recorded reasons and the approval form, and also to the fact that the recorded reasons are also undated. 30. We have heard the counsels and considered the materials on record, pertaining to the recorded reasons (undated) and the corresponding approval granted by the Ld. PCIT, Jammu, dated 26/07/2018, and we are in agreement with the assessee that there has not been any proper application of mind resulting in an objective satisfaction of the higher authority, and according approval to an incorrect figure of quantum of income which had escaped assessment, which are at great variance with each other, as mentioned in approval and recorded reasons, cannot be legally sustained. 31. As such respectfully following the observation of the Bombay High Court in the case of Teleperformance Glo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
