9911796707
TMI Blog2025 (2) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment in this case was bad in law and the same is liable to be quashed on this score alone. Even on merits, the impugned additions are not sustainable.
No notice u/s 143(2) has been issued before passing the impugned assessment order - DR could not bring out any evidence on the file to show that any notice u/s 143(2) of the Act was ever issued to the assessee. The assessee having duly taken the aforesaid plea that no notice u/s 143(2) of the Act was issued to the assessee and there is a complete silence about it in the assessment order, which duly proves that no notice u/s 143(2) of the Act has ever been issued to the assessee in this case.
The Hon'ble Supreme Court in the case of 'ACIT vs. Hotel Blue Moon' [2010 (2) TMI 1 - SUPREME COURT] held that the issue of notice u/s 143(2) is sine qua non to assume jurisdiction to proceed with the assessment in a case. The assessment carried out without issuing any notice u/s 143(2) of the Act in such cases will be bad in law.
Assessee appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... dits took place during the year under consideration raises suspicion of transaction. The source of the amount and parties name with nature of payment to whom payments/transfer made through these accounts needs verification. Total amount credited in the said accounts during different financial, years and sales-turnover & profit before tax as shown by the assessee has been mentioned in the information. The returned income and profit of the above said assessee compares are very meagre or negligible which creates suspicion. On perusal of the Information it appears that M/S. SUNCITY NIKETAN PVT. LTD. PAN: AAPCS4157E has been credited Rs. 17,99,28,555/- in its bank account during the F. Y. 2012-13 corresponding to A. Y. 2013-14. A comprehensive investigation/enquiries and verification of data possessed by the department and after applying mind, the undersigned has reasons to believe that the assessee M/S. SUNCITY NIKETAN PVT. LTD. PAN: AAPCS4157E is a beneficiary to the tune of Rs. 17.99.28.555/- who has capitalized its unaccounted monety by way of accommodation entry through lairing of fund during the F.Y.2012-13 relevant to A.Y.2013-14. Hence, on the basis of the information coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that we are a beneficiary person which is without any iota of evidence or without any conclusive proof of any wrong doing on our part. iii. The reasons recorded by you for issue of Notice under section 148 are not your reasons but borrowed satisfaction from Investigation Wing and the re-assessment proceedings based on such borrowed reasons is without jurisdiction, illegal and void ab initio and is liable to be dropped. iv. There is no evidence to show that any person had received cash in respect of the alleged transactions and/or any other sum whatsoever against amount received by the assessee company. v. that we have not understated any of its income for the said financial year under consideration, i.e. FY.2012-13 (A.Y 2013-14), vi. that no income has escaped assessment within the meaning of Section 147 of the Income Tax Act 1961, vii. that the said notice has been issued merely on suspicion and not on believe and we object to such Issuance of notice u/s 148 of the Income tax Act 1961 and request your good self to drop the said proceedings under the act after verifying the information at your end. Please acknowledge the same & oblige. Should you require any further i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, the Assessing Officer was supposed to discuss as to the relevant transactions and should have also correlate the same with the books of account of the assessee as well as bank account of the assessee and should have mentioned at least as to from whom the assessee has received the unexplained cash credits etc. Even the most peculiar point is that on identical reasons, the assessment for assessment year 2012- 13 was reopened, however, in the assessment order, no additions were made on this issue. Even the assessee had duly filed objections in this respect but the Assessing Officer failed to decide the objections and passed the impugned cryptic assessment order. Therefore, in our view, the reopening of the assessment in this case was bad in law and the same is liable to be quashed on this score alone. Even on merits, the impugned additions are not sustainable. 6. The second legal ground taken by the assessee is that no notice u/s 143(2) of the Act has been issued before passing the impugned assessment order. The ld. counsel has invited our attention to page 13 of the paper-book, which is the copy of the e-proceedings, whereby, the assessee has demonstrated that the assessee had d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 16, 2010, the date on which the assessee informed the Assessing Officer that the return originally filed should be treated as the return filed pursuant to the notice under section 148 of the Act. 13. In DIT v. Society for Worldwide Interbank Financial Telecommunications [2010] 323 ITR 249 (Delhi), this court invalidated a reassessment proceeding after noting that the notice under section 143(2) of the Act was not issued to the assessee pursuant to the filing of the return. In other words, it was held mandatory to serve the notice under section 143(2) of the Act only after the return filed by the assessee is actually scrutinised by the Assessing Officer. 14. The interplay of sections 143 (2) and 148 of the Act formed the subject matter of at least two decisions of the Allahabad High Court in CIT v. Rajeev Sharma [2011] 336 ITR 678 (All) it was held that a plain reading of section 148 of the Act reveals that within the statutory period specified therein, it shall be incumbent to send a notice under section 143(2) of the Act. It was observed (page 687): "The provisions contained in sub-section (2) of section 143 of the Act is mandatory and the Legislature in its wisdom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Salarpur Cold Storage (P.) Ltd. (supra), the Allahabad High Court noticed that the decision of the Supreme Court in Hotel Blue Moon (supra) where in relation to block assessment, the Supreme Court held that the requirement to issue notice under Section 143(2) was mandatory. It was not "a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with." 17. The Madras High Court held likewise in Sapthagiri Finance & Investments v. ITO [2012] 25 taxmann.com 341/210 Taxman 78 (Mad.) (Mag.). The facts of that case were that a notice under Section 148 of the Act was issued to the Assessee seeking to reopen the assessment for AY 2000-01. However, the Assessee did not file a return and therefore a notice was issued to it under Section 142 (1) of the Act. Pursuant thereto, the Assessee appeared before the AO and stated that the original return filed should be treated as a return filed in response to the notice under Section 148 of the Act. The High Court observed that if thereafter, the AO found that there were problems with the return which required explanation by the Assessee then the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
