TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 110
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.... The facts of the case, briefly, are as under :- 2.1 The assessee, an individual engaged in real estate, filed his return for Assessment Year 2004-05 on 12.1.2005 declaring total income of Rs. 5,68,81,556 and agricultural income of Rs. 2,00,000. The return was processed under Section 143(1) of the Income Tax Act, 1961 (in short 'the Act') and the case was taken up for scrutiny. The assessment was completed under Section 143(3) of the Act vide order dt.22.12.2006, wherein the income of the assessee was determined at Rs. 6,74,73,557. 2.2 A search under Section 132 of the Act was conducted in the case of one Sri Sohanraj as well as M/s. Mehta Associates, Bangalore on 10.10.2009 wherein it was found that the assessee was a partner in the above firm, which was the sole C&F Agent of Manikchand Gutka for the State of Karnataka. As per information gathered in the search of the Sohanraj Group of cases, the assessee in the case on hand had received Rs. 7,16,22,000 in cash from these parties in the period relevant to Assessment Year 2004-05. In this regard, the Assessing Officer initiated re-assessment proceedings under Section 147 of the Act in order to bring to tax in the assessee....
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....the learned CIT (Appeals), inter alia, relied on the following decisions of the co-ordinate bench in the cases of :- (i) Synopsis International Ltd. V DDIT in ITA No.549/Bang/2011 dt.10.12.2012; and (ii) Suez Tractabel SA V DDIT in ITA No.656/Bang/2009 dt.7.6.2013. 4.1 Aggrieved by the order of the CIT (Appeals) - II, Bangalore dt.24.3.2014 for Assessment Year 2004-05, Revenue has preferred this appeal raising the following grounds :- " 1. The order of the learned CIT (Appeals) is opposed to law and facts of the case. 2. On the facts and in the circumstances of the case the learned CIT (Appeals) erred in holding that the reassessment is bad in law because the assessee was not formally provided with the reason of reopening despite the fact that the assessee was very well aware of the reasons of reopening throughout the reassessment proceedings and the assessee had appeared & co-operated in the reassessment proceedings and the same cannot be held bad in law as per the provisions of section 292BB. 3. For these and other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT (Appeals) in so far as it relates to the above grounds may be reversed....
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....ged in the statute. 7. Without Prejudice the Respondent / Cross Objector contends that the process initiated and adopted as per section 148 of the Act by the learned assessing officer is bad in law as no proceedings can be initiated under section 148 if the information based on which the assessment is re-opened is pursuant to a search. 8. Without prejudice the Respondent / Cross Objector contends that no proper procedure has been followed by the learned assessing officer for issuance of a notice under the provisions of section 148 of the Act as envisaged under the statue under the facts and circumstances of the case. 9. Without Prejudice the Respondent / Cross objector denies himself liable to be taxed on a total income determined by the learned assessing officer of Rs. 13,90,95,557/-/- as against the reported income by the Respondent / Cross Objector of Rs. 5,68,81,556/- under the facts and circumstances of the case. 10. Without Prejudice the learned assessing officer is not justified in law in adding a sum of Rs. 7,16,22,000/- under section 69A / 69 of the Income Tax Act, under the facts and circumstances of the case. 11. Without Prejudice the learned Assessing Officer is no....
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....he C.O. before the Tribunal. It was submitted therein that the notice of Revenue's appeal which was received by the assessee on 7.4.2015 was misplaced by his staff. It is submitted that when the listing of Revenue's appeal was noticed by the assessee's counsel, enquiries revealed that the cross objection required to be filed has not yet been filed. It is prayed that the delay of 4 days be condoned as it as neither intentional nor willful or deliberate and the assessee would be put to great hardship if the same delay is not condoned. In support of the assessee's plea for condonation of delay in filing the C.O., the assessee placed reliance on the decision of the Hon'ble Apex Court in the following cases :- (i) Collector, Land Acquisition V MST Katiji & Others (1987) 167 ITR 471. (ii) Concord of India Insurance Co. Ltd. (118 ITR 507). 6.2 We have heard both the learned Departmental Representative for Revenue and the learned Authorised Representative for the assessee in the matter. Taking into account the facts and circumstances of the case and the reasons cited in the petition for condonation of delay, we are of the view that the substantial interest of equity and just....
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....he Act, as requested for by the assessee is not fatal to the reassessment proceedings / order. The Hon'ble Apex Court in the case of GKN Drive Shafts (India) Ltd. in 259 ITR 19, laid down the law that it is mandatory for supply of the copy of the reasons recorded, if asked for by the assessee; provided the assessee has complied with his duty of filing a return of income in response to the notice under Section 148 of the Act. In the case on hand, the learned CIT (Appeals) in the impugned order at paras 3.4 to 3.10, after examining the records of assessment has rendered a finding that the assessee has complied with the obligations cast upon him by the notice under Section 148 of the Act and has also sought for the reasons recorded by the Assessing Officer for initiating re-assessment proceedings under Section 147 of the Act. The learned CIT (Appeals) observed that the Assessing Officer, however, has failed to furnish the assessee with a copy of the reasons so recorded and this failure on the part of the Assessing Officer, in our view, has prevented the assessee from filing his objections, if any, to the notice issued under Section 148 of the Act. This failure on the part of the A....
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....y cancel the reassessment order under appeal........." 7.3.3 The co-ordinate benches of this Tribunal while rendering their findings in the cases of Synopsis International Ltd. (supra) and Suez Tractabel S.A. (supra) have followed the principle laid down by the Hon'ble Apex Court in the case of GKN Driveshafts (India) Ltd (supra); which have been followed by the learned CIT (Appeals) in her order while cancelling the order of re-assessment passed under Section 143(3) rws 147 of the Act dt.29.12.2011. We have perused the judgment of the Hon'ble Allahabad High Court in the case of Shyam Cold Storage (supra), relied upon by Revenue, and with due respect find its facts not at all applicable to the facts of the assessee in the case on hand and therefore has no bearing in deciding this appeal. In view of the facts and circumstances of the case as discussed above and in consonance with the decisions of the co-ordinate benches of this Tribunal in the cases of Synopsis International Ltd. (supra) and Suez Tractabel S.A. (supra), relied upon by the learned CIT (Appeals) in the impugned order, we concur with and uphold the decision of the learned CIT (Appeals) in cancelling the order....
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....sessment Year 2004-05 be treated as the return of income filed in response to the notice issued for Assessment Year 2004-05 and requested that he be provided / furnished with a copy of the reasons recorded by the Assessing Officer for initiating re-assessment proceedings under Section 147 and issue of notice under Section 148 of the Act. However, from the records before us, it appears that the assessee was not provided with copy of the reasons recorded by the Assessing Officer for initiating re-assessment proceedings under Section 147 of the Act. The Assessing Officer concluded the reassessment proceedings under Section 143(3) rws 147 of the Act vide order dt.30.12.2011 wherein the income of the assessee was determined at Rs. 7,48,05,435; which included addition of the said amount of Rs. 7,16,22,000 under Section 69A/69 of the Act, on protective basis. 10. Aggrieved by the order of assessment dt.30.12.2011 for Assessment Year 2004- 05, the assessee preferred an appeal before the CIT (Appeals) - II, Bangalore, challenging the said re-assessment order on various grounds, including challenging the validity of the said re-assessment order passed without supplying the assessee the reas....
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....al by virtue of the provisions of section 292BB of the Act, in view of the fact that the assessee was aware of the reasons for re-opening the assessment and had appeared and co-operated in the re-assessment proceedings. 12. The assessee has filed cross objection, in respect of the impugned order of the CIT (Appeals) - II, Bangalore dt.24.3.2014 for Assessment Year 2004-05, which are as under :- 1. " The order of the learned Commissioner of Income-tax [Appeals] in as far as it is against the Respondent / Cross Objector is opposed to law, facts, equity, and weight of evidence and circumstances of the case. 2. The order passed by the learned Commissioner of Income-tax [Appeals] is just and proper and the same requires to be upheld under the facts and circumstances of the case. 3. Without Prejudice to the learned Commissioner of Income-tax [Appeals] failed to adjudicate all the grounds raised by the Respondent / Cross Objector under the facts and circumstances of the case. 4. Without prejudice the order of re-assessment passed under section 147 of the Act is bad in law and void-ab-intio as the mandatory conditions to invoke the provision of 17 ITA Nos.926 & 927/Bang/2014 & C.O. No....
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....in the scheme of the Act more so in respect of deemed income there is no question of alternatives and ought to have been specific to the relevant section of the Act on which addition is made under the facts and circumstances of the case. 12. Without Prejudice the Assessment Order suffers from grave violation of principles of natural justice and the learned Assessing Officer has relied upon certain statements recorded without even putting the same to the Respondent / Cross Objector for his rebuttal. The Respondent / Cross Objector was entitled for cross examination which the same was denied by the learned Assessing Officer and the learned assessing officer proceeded to use the statement against the Respondent / Cross Objector without even giving an opportunity which is against the settled principles of law and thus the Order passed on such grave violation of principles of natural justice deserves to be cancelled on the facts and circumstances of the case. 13. Without Prejudice the learned Assessing Officer is not justified in law in charging the interest under section 234 A, 234 B and 234 C of the Act and further the calculation of interest under section 234 A, 234 B and 234 C of ....