2014 (7) TMI 459
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....he income at Rs. 9,66,210/- as against 'nil' returned Income. 3. In not appreciating the fact that the service of the notice u/s.148 is itself bad in law, void ab-initio, illegal and liable to be quashed. 3a. It is prayed that even notice u/s.143(2) has not been served to the assessee and/or to authorized person, and as such, the proceedings u/s.143(2)/143(3)/148 is itself bad in law, void ab-initio and liable to be quashed. 4. In not appreciating the fact that as per the reasons recorded, 148 notice was In reference to the amount of Rs. 5,35,586/- and not in reference to the amount of addition made worth Rs. 9,29,945/- and as such addition to the extent of Rs. 9,29,945/- is bad in law and Illegal. 5. In not appreciating the fact that even otherwise the assessment framed beyond 4 years is Itself bad in law, void ab-initio and illegal though the intimation u/s.143(1)(a) dated 07.02.1995 has been passed. There is no such tangible material on record. 5a, In not appreciating the fact that there Is no application of mind either by Assessing Officer or by his concerned appropriate authority u/s.151 before issuing any notice u/s.148 and/or before giving any approval- It is pr....
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.... notice and further prayed that, assessee has not committed by such default. The concise grounds of the appeal of the assessee for the Asstt.Year 1995-96 are as under: "The following grounds are without prejudice to each other. In view of the facts and circumstances of the case, the learned Assessing Officer/Commissioner of Income Tax (Appeals) erred - 1. In not condoning the so-called delay of filing of appeal. It is prayed that the appellant has filed appeal immediately after coming into knowledge that the affixture has been made. Further, without prejudice, CIT(A) himself has decided the appeal on merits and as such he ought to have condone the delay. 2. In assessing the income at Rs. 1,29,76,570/- as against 'nil' returned Income. 2a. In making addition u/s.68 on account of Promoters' Application money of Rs. 28,38,000/- 3. In not appreciating the fact that the service of the notice u/s.148 is itself bad in law, void ab-initio, illegal and liable to be quashed. 3a. It is prayed that even notice u/s.143(2) has not been served to the assessee and/or to authorized person, and as such, the proceedings u/s.143(2)/143(3)/148 is itself bad in law, void ab-initio and li....
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....already discharged the onus in reference to each and every creditors as discussed by CIT(Appeals) in his appeal order page 56 to 63. 13. In not appreciating the fact that the approval granted u/s.151 is itself bad in law and illegal, mainly on the ground that the higher authority has given approval in a very cursory manner by writing 'yes' in approval memo. Therefore, it is prayed that there is no application of mind and as such, the approval as well as notice u/s.148 is bad in few. 14. The Learned C.I.T-(Appeals) has erred in giving some adverse remarks as per the appellate order page 85 to 103. It is prayed that in view of the facts and circumstances of the case, he ought not to have passed such remarks. 15. In charging interest under sec.234A and 234B only in the demand notice and further prayed that, assessee has not committed by such default. 3. The learned counsel for the assessee submitted that this is third round of litigation before the Tribunal. He submitted that the CIT(A) in the impugned order has refused to condone the delay in filing the appeal before him and has dismissed the appeal on this ground. Further, the learned CIT(A) has decided the matter on its mer....
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.... but was received back from the postal authorities. Thereafter, the order for both the Asstt.Years 1994-95 and 1995-1996 were served by affixture on 2.1.2009. The CIT(A) has recorded that the AO has enclosed copies of panchnama regarding service of the assessment orders for both the Asstt.Years 1994-95 and 1995-1996 by affixture. The panchnama is dated 2.1.2009, and hence, the claim of the assessee that the assessment orders were served by affixture on 9.11.2009 was held as patently wrong by the CIT(A). The CIT(A) has further recorded that the assessee has not given any reason as to why the delay was occurred for more than one year and that in fact the assessee has made a wrong statement that the orders were affixed in November 2009 and not in January, 2009. The CIT(A) has further recorded in the impugned order that the assessee has got the orders set aside from the ITAT with the promise that he would cooperate in the assessment proceedings and instead of cooperating by filing details, the assessee has not even attended and not even received orders. In these facts, the appeals were dismissed as time barred by the CIT(A). We find that even before us no reason for the delay in filing....
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.... approval granted by the higher authorities to the issue of notice under section 147 was mechanical and without application of mind. He relied on the following series of decisions in support of his arguments: i) Central India Electric Supply Co. Ltd. Vs. ITO, (2011) 51 DTR (Del) 51; ii) German Remedies Ltd. Vs. DCIT, 287 ITR 494 (Bom); iii) Chhugamal Rajpal vs. S.P. Chaliha & Ors., (1971) 79 ITR 603(SC); iv) Silver Mines Vs. ITO, (2007) 110 TTJ (Jp) 118; v) Jay Bharat Maruti Ltd. Vs. CIT, (2010) 324 ITR 289 (Del); vi) Chhugamal Rajpal v. S.P. Chaliha, 79 ITR 603 (SC) vii) Central India Electric Supply Co. Ltd. v. Income-tax Officer, Company Circle-X, New Delhi, 333 ITR 237 (Delhi) viii) German Remedies Ltd.v. Deputy Commissioner of Incometax, 287 ITR 494 (Bom), ix) United Electrical Co. (P.) Ltd. v. Commissioner of Incometax, 258 ITR 317 (Delhi), x) Commissioner of Income-tax, Delhi X v. Atul Jain, 212 CTR 42 (Delhi) 8. The learned DR has opposed the submission of the learned counsel for the assessee. He submitted that the CIT(A) has passed a well reasoned order while holding that the action under section 147 was rightly taken in this case. He relied on the orders of the....
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....n the son of the assessee, as the assessee was stated to be in UK during the relevant time and that the assessee has complied with by filing return of income in response thereof. The CIT(A) has recorded that Shri R.R. Tibrewala, Chartered Accountant, the authorized representative of the assessee, after the service of notices under section 148 on the son of the assessee, has filed a letter dated 31.5.2001 requesting to treat the earlier return filed already as return filed in response to notice u/s.148 of the Act. However, thereafter, the assessee turned totally non-operative and did not attend the proceedings even after the service of notice of the same. We find that the assessee has filed affidavit during the previous round of litigation before the Tribunal undertaking that the assessee shall cooperate with the department in the matter of finalization of its assessment, and the Tribunal in earlier occasions on the basis of the assurance given in the form of affidavit of the assessee, restored the matter to the AO and gave fresh opportunity to the assessee to prove its case in the interest of justice. We find that the Tribunal in the second round of litigation before it vide its or....
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....wn duly sworn affidavits, and also the specific direction of the Tribunal while setting aside the assessment proceedings to the file of the AO. The department has served the notice by affixture at the last known address of the assessee and copy of the panchnama was filed before the CIT(A) by the AO. There is no material before us to doubt the genuineness of the said panchnama regarding service of notices. In these facts of the case, we hold that there is no mistake in the order of the CIT(A) on the issue that the grounds of the appeal are meaningless and dismissed as raised without any basis, and the notices were validly served as stated by the AO in the remand report and the orders have also been served as detailed in the orders of the CIT(A), and accordingly, the issue is decided against the assessee. 11. We further hold that the issue that the assessment framed under section 147 should not go beyond the reasons recorded, has to be decided against the assessee, as it is well settled that once the assessment is validly reopened, it is open to the AO to go into the entire assessment. We find that the CIT(A) has recorded a number of decisions of the Hon'ble Courts on this issue whi....