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TMI Blog2025 (3) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 148 is invalid in law and void-ab-initio and without prejudice the notice u/s 148 under the unamended act issued after 31.03.2021 is invalid in view of decision of Monmohan Kohlı. 2. On facts and in the circumstances of the case, the Ld CIT(A) has erred in law in upholding reassessment proceedings ignoring the fact that the reassessment proceedings have been initiated belatedly beyond the limitation of four years from the end of the assessment years without complying with the first proviso to sec 147 and such action is nothing but change of opinion. 3. On facts and in the circumstances of the case, the reassessment proceedings under appeal are bad in law as the same have been initiated by issue of notice u/s 148 during pendency of rectification proceedings u/s 154 of IT Act and such proceedings are invalid in view of the decision of Hon'ble Apex Court in the case of S M Overseas P Ltd vs CIT CA No.3612-3613 of 2012. 4. On facts and in the circumstances of the case, the authorities below have erred in upholding the reassessment proceedings ignoring the fact that impugned assessment is invalid and without jurisdiction as the reassessment proceedings has been initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record of the department is a fact evident from the screenshot (PB 148) which is the communication of processing intimation u/s 143(1) dated 26.11.2020 sent on above correct email id i.e. [email protected], which event is just 4 months prior to issue of notice u/s 148 on 30.03.2021. Further, the above latest email id can be found mentioned in last ITR available with AO for AY 2020-21 filed on 20.01.2021 (PB 146-147) which is about 2 months prior to issue of notice u/s 148 of IT Act in the present case. It is also relevant to note that even the ITR originally filed for AY 2014-15 u/s 139(1) of IT Act (PB 1-30) shows that the email id [email protected] which is not email id on which the notice u/s 148 was also served. The above service of the notice is therefore not in accordance with sec 282 read with rule 127 of IT rules. There is no communication of the notice either through physically or through post/courier and only mode of communication adopted by the department in present case is electronic communication that too on the email id not pertaining to the appellant at relevant point of time as discussed hereinbefore. The appellant came to be aware of the ongoing reasse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to comply with the direction of Hon'ble Supreme Court in Ashish Agarwal case (supra). Interestingly, the impugned assessment has been completed on the basis of the notice originally issued without converting the same as per dictates of the Hon'ble Apex Court to be proceedings u/s 148A of IT Act. The Hon'ble co-ordinate Bench in the decision of Brett Lee vs ACIT ITA No.867/Del/2023 dated 29.05.2024 has quashed the reassessment proceeding on identical facts of the case. In the present case the notice is construed to be issued on 24.12.2021, beyond the relaxation upto 30.06.2021 granted under TOLA, even the one-time reprieve granted by the Apex Court in Ashish Agarwal (supra) does not save the validity of such notice. Without prejudice, since the notice u/s 148 is construed to be issued after 01.04.2021, after the amendment under Finance Act 2021 came into force, such notices are invalid unless the same are saved by the decision of Hon'ble Apex Court in the case of Ashish Aggarwal (supra). The Hon'ble Apex Court has converted all such notices falling during period of TOLA 2020 i.e. 01.04.2021 to 30.06.2021 as the show cause notices u/s 148A(b) of IT Act and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this mandatory condition is introduced through proviso to put the AO under obligation to Identify the particular facts not disclosed by the assessee. Such Bald assertion does not meet the mandatory requirement of above proviso in view of the following decisions: * BPTP Limited vs. PCIT 185 DTR 0372 (Del); * Anand Developers vs. ACIT (Bom) W P No.17 of 2020 dt: 18.02.2020; * Best Cybercity (India) Pvt Ltd (2019) 414 ITR 0385 (Del); * M/s Swarovski India Pvt. Ltd v. Deputy Commissioner of Income Tax. W.P.(C) 1909/2013 decided on 08.08.2014 (Del); * Global Signal Cables (India) Pvt. Ltd. vs. Dy. CIT [2014] 368 ITR 609 (Del); * HCL Technologies Ltd. v. Dy CIT W.P.(C) 8164/2020 (Del); * M/s Sabh Infrastructure Ltd vs ACIT 398 ITR 0198 (Del). (c) If the case of the AO is that the original assessment order was passed on the basis of incomplete/incorrect information provided by the appellant in those proceedings, then the only option available to the department under the circumstances was assumption of revisionary jurisdiction by the CIT/PCIT u/s 263 of the IT Act and not action u/s 147/148 of IT Act. The absence of such action by the department u/s 263 presupposes the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regularly employed by the assessee. In case, the Ld AO was inclined to disturb the trading results which is done in present case, the Ld AO was required to record satisfaction about the correctness or completeness of accounts or that method of accounting has not been regularly followed or is not in accordance with the accounting standards notified u/s 145(2) of IT Act. In case, the Ld AO finds the accounts suffering from the above defects, the Ld AO could reject such books of account by invoking provision of sec 145(3) of IT Act and in that case, he is empowered to make best judgment assessment by disturbing the trading results extracted from the books of account. Unless power u/s 145(3) is exercised, the Ld AO is not entitled to assume jurisdiction to make any trading additions. It is a settled law that if the books of account are not rejected by the AO u/s 145(3) of IT Act, the AO is not within his power to make trading additions. Reliance is placed on the following authorities: * CIT Vs Pashupati Nath Agro Food Products Pvt. Ltd. (Allahabad High Court) ITA No.165 of 2010 dated 04.05.2017; * Sargam Cinema vs CIT 328 ITR 513(SC); * Vikram Plastics & Others [239 ITR 161 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO and endorsed by the CIT(A). 5. We have carefully heard the rival submissions and perused the material placed on record by way of Paper Book. Case laws referred have been given due weight. 6. The assessee has inter-alia challenged the validity and maintainability of impugned assessment order itself on the ground that the re-assessment order has been framed without valid service of notice purportedly issued under s. 148 of the Act. The assessee contends that service of notice under s. 148 of the Act is a mandatory requirement for continuation of re-assessment proceedings and culmination thereof in re-assessment order. The assessee with reference to the papers placed in the Paper Book as demonstrated before the Tribunal that notice issued under s. 148 dated 30.03.2021 was never communicated to the assessee in the correct e-mail ID of the Department. The notice has been sent to some other e-mail ID which has no relation with the assessee. The fact of service of notice at the wrong e-mail ID has been demonstrated to be supported by the screenshot of e-filing portal and ITBA system portal and further reinforced by the copy provided by the Department in response to RTI application. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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