TaxTMI 
TaxTMI 
2016 (9) TMI 746
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....ted therewith enclosed as annexures "A" & "B" to this appeal Memo. 4. The Learned CIT(A) has grossly erred in holding that there is no such loan amount outstanding in the balance sheet of Krishna Enterprises, ignoring all the evidences placed before the Learned CIT(A) in the letters / written submission cited in Ground No.3 above. 5. The Learned CIT(A) has also grossly erred in upholding the addition on the ground that the appellant has initially stated that the receipt was a fee for certain project, which later got converted into loan and that there are certain contradiction in the statement of the appellant and on other assumptions and presumptions which are all irrelevant. 6. The Learned CIT(A) also failed to appreciate that the evidences and facts on record are contrary to the assumptions and presumptions made and even if there are any contradictions in the statement given in the state of confusion, the Authorities in fairness are bound to take the statements which are supported by the evidences in preference to those which are not supported by evidences. 7. The Appellant craves leave to add any other ground or modify or revise the grounds ta....
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....d as per these provisions, if the assessee appeared and joined the proceedings, he cannot raise a plea with respect to service of notice of hearing at appellate stage. 5. Having carefully examined the order of lower authorities in the light of rival submissions, we find that undisputedly the assessee has filed her return of income on 20.8.2011 and in support thereof, copy of acknowledgement is also placed on record during the course of hearing. Therefore notice u/s. 143(2) is to be issued by 30.09.2012. In the assessment order itself, the AO has observed that notice u/s. 143(2) was issued on 13.09.2012 and since there was no response to this notice, another notice u/s. 143(2) was issued on 14.12.2012. This admission of the AO clearly speaks that notice u/s. 143(2) dated 13.09.2012 was not served upon the assessee and therefore he was forced to issue second notice u/s. 143(2) on 14.12.2012. Moreover, as per the provisions of section 143(2) of the Act, the requirement of law is to serve a notice within a specified period and not only issuance of notice. It is also noticed that during the course of appellate proceedings, the assessee has filed an affidavit contending therein that n....
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.... be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return: Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished." 11. Under clause (ii) of sub-section (2) of Section 143, the Assessing Officer is required to serve, on the assessee, a notice requiring him to attend the office or to produce evidence on which the assessee may rely in support of the return, if the Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner. Under the proviso to clause(ii), it has been specified that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. Service on the assessee of a notice within the period prescribed by the proviso presupposes the issuance of a notice for, it is only when a notice is issued, that it can be served. Thereafter, ....
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.... 15. Similar view was held by a Division Bench of this Court in Commissioner of Income Tax II Lucknow Vs. Salarpur Cold Storage (P) Ltd. , (2014) 50 Taxman.Com.105 = 2014-TIOLITA 1522-HC-ALL-IT, Commissioner of Income-tax, Faizabad Vs. Adarsh Travel Bus Service, (2012) 17 taxmann. Co 140(All.) as well as in Commissioner of Income-tax Vs. Mukesh Kumar Agrawal, 345 ITR 29 and Commissioner of Income-tax Vs. Rajeev Sharma, (2010) 192 Taxman 197 (All.) = 2010-TIOL-381- HC-ALL-IT. 16. In the light of the aforesaid decisions, it is apparently clear that the jurisdiction of the Assessing Officer to make an assessment under Section 143(3) (ii) of the Act is based on the issuance of a notice under Section 143(2)(ii) of the Act. The proviso to clause (ii) of sub Section (2) of Section 143 clearly stipulates that a notice must be served on the assessee. 17. In the light of the aforesaid, we have to see as to whether the word "notice" specified in paragraph 16 of the Supplementary Affidavit is in fact a notice issued under Section 143 (2) of the Act. The learned counsel was directed to show the said notice from the original assessment records. The relevant notice was shown t....
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....of the Act. The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him; or (ii) not served upon him in time; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to Section 292 BB of the Act, however, carves out an exception to the effect that the Section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under Section 143 (3) of the Act, it is necessary to issue a notice under Section 143 (2) of the Act and in the absence of a notice under Section 143(2) of the Act, the assumption of jurisdiction itself would be invalid. 20. In view of the aforesaid, we are of the opinion that Section 292BB, which was inserted with effect from 01.04.3008 is not applicable to the proceedings for the as....
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....come-tax Officer to reopen an assessment subject to service of notice within the prescribed period. Therefore, service of notice within limitation was the foundation of jurisdiction. The same view has been taken by this Court in Janni v. Indu Prasad Bhat, 72 ITR 595 as also in C.I.T. v. Robert, 48 ITR 177. The High Court in our opinion went wrong in relying upon the ratio of 53 ITR 100 in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149 in the 45 1961 Act. A clear distinction has been made out between 'issue of notice' and 'service of notice' under the 1961 Act. Section 149 prescribe the period of limitation. It categorically prescribes that no notice under section 149 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. ....