TaxTMI 
TaxTMI 
2014 (11) TMI 67
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.... to apprecìate that none of the conditions precedent existed and/or have been complied wìth and/or fulfilled by the Ld. Income Tax Offìcer, Ward 2(2), Hooghly for hìs alleged assumptìon of jurìsdìction u/s. 147 of the Income Tax Act, 1961 and the specious order passed u/s. 147/143(3) of the Act in pursuance to the ìmpugned notice dated 07-07-2011 ìssued u/s. 148 of the Act ìs therefore ab inìtio void, ultra vires and ex-facie null in Law. 2. FOR THAT on a true and proper interpretation of the scope and ambìt of the provìsìons of s. 147 of the lncome Tax Act, 1961, the Ld. Commissioner of ìncome Tax (Appeals) XXXVI, Kotkata was absolutety ìn error in upholdìng the actìon of the Ld. Income Tax Officer, Ward 2(2), Hooghly of issuing notice u/s. 148 of the Act by mìsconstruìng the crucìal expression 'tangibie material' in support of such futìle exercìse and the purported conclusìon reached on that behalf ìs opposed to law. 3. FOR THAT the Ld. Cornmìssioner of lncome Tax (Appeals) XXXVI, Kolkat....
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....k or account payee bank draft, exceeds twenty thousand rupees, no deduction shall be allowed in respect of such expenditure." So, I reason to believe that income chargeable to tax had escaped assessment." The assessee objected to assumption of jurisdiction u/s. 147 of the Act by taking pleading that all the material details were placed before the AO during original assessment proceedings framed u/s. 147 r.w.s. 143(3) of the Act vide order dated 30.11.2009, wherein entire material was verified and no disallowance u/s. 40A(3) of the Act was made despite the fact that the AO was in the prime knowledge that purchases are made in cash. Accordingly, it was stated that Munshi Mini Rice Mill AY 2007-08 this is mere change of opinion by virtue of which reopening is made by AO. But the AO rejected the objection of the assessee for the following reasons: "1. That during course of original assessment for above said assessment year no documents were filed which transparently shows the mode of payment for purchase of paddy. 2. That the cost of transportation of paddy after purchase and sales of rice is not disclosed in the accounts which is a very cogent fact and form bonafide inform....
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....rse of original assessment proceedings. On query from the bench, Ld. CIT, DR stated that he has no objection in admitting that these documents were placed before the AO during original assessment proceedings. From the above statement of paddy purchase during the FY 2006-07 relevant to AY 2007-08 from 49 parties was in cash as is evident from the statement. The statement was available before the AO during the course of assessment proceedings and on purchases, a specific query was raised by the AO, which is evident from the questionnaire issued along with notice u/s. 142(1) wherein vide point no.1, which is enclosed at page 51 of assessee's paper book, the query raised was that "details of paddy purchase with name & address of the parties". This was replied by the assessee vide letter dated 07.10.2009, which is enclosed at assessee's paper book page 45, wherein statement of paddy purchase was given. From the very reasons recorded, as reproduced above, clearly reveals that this reopening is on scrutiny of assessment records, which has been gathered that the assessee has paid total amount of Rs. 14,67,200/- to 49 parties in cash during the FY 2006- 07 relevant to AY 2007-08 for....
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.... order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of section 114(e) of the Indian Evidence Act, 1872, judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the AO to reopen the proceeding without any thing further, the same would amount to giving a premium to an authority exercising quasi judicial function to take benefit of its own wrong. 5. Similarly, Hon'ble Supreme Court in the case of CIT Vs. Foramer France (2003) 264 ITR 566 (SC) affirmed the judgment of Hon'ble Allahabad High Court in the case of Foramer Vs. CIT (2001) 247 ITR 436 (All), wherein Hon'ble Allahabad High Court held as under: "Having heard learned counsel for the parties, we are of the view that these petitions deserve to be allowed. It may be mentioned that a new section substituted section 147 of the Income-tax Act by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989. The relevant part of the new section 147 is as follows: "147. If the Assessing Officer, ....
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....n or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new section 147 squarely applies, and the impugned notices were barred by limitation mentioned in the proviso. Learned departmental counsel relied on section 153(3)(ii) of the Income- tax Act and submitted that there was no bar of limitation in view of the said provision. We do not agree. Section 153 relates to passing of an order of assessment and it does not relate to issuing of notice under section 147/ 148. Moreover, this is not a case where reassessment is sought to be made in consequence of or to give effect to any finding or direction contained in the order of the Tribunal in Boudier Christian's case. As already stated above, Boudier Christian's case related to the employees of the company, whereas the impugned notice has been issued to the company. Hence, it cannot be said that the proposed reassessment in consequence of the impugned notice would be in consequence of or to give effect to any find- ings of the Tribunal in Boudier Christian's case. A direction or finding as contemplated by section 153(3)(ii) must be a finding necessary for the disposal....