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2015 (9) TMI 1601
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....ecise in accordance to the direction of tribunal. (3)That the Id. CIT(A) is erred to concur with the view of the assessing officer and hold, where it is admitted fact that reopening is without any additional evidence or tangible material, that the AO acquires jurisdiction u/s. 147 if he has reason to believe that any income chargeable to tax has escaped assessment for any assessment year ignoring the cited judicial pronouncement. (4)That the Id. CIT(A) is erred to concur with the view of the assessing officer and hold that the AO is not bound to serve notice u/s. 143(2) but can proceed to complete the reassessment on the basis of notices issued u/s. 148 and 142(1) which are duly complied by the AO. (5)That the Id. CIT(A) is erred to concur with the view of the assessing officer and hold, where claim made by the appellant that the reopening proceeding initiated u/s. 147/148 is by circumventing s. 143(2) to extend the limitation period is without any basis without appreciating the fact that reopening was subject to change of opinion. (6)That the Id. CIT(A) is erred to hold that the decisions relied upon by the appellant, in the case of GK Drive Shaft 259 ITR 19(5C), Hotel....
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....ing and copy of the notice issued u/s. 143(2)of the Act, that there was no propriety on part of the assessee to raise an objection by way of additional ground of appeal regarding service of notice u/s. 143(2)of the Act. He referred to the provisions of section 292BB of the Act and held that the assessee had not raised any objection before completion of re-assessment proceedings, that it was not entitled to raise any such objection without any valid reason subsequently, that it had not raised any objection before the then FAA, that additional ground was not emanating from assessment order or the appellate order , that same was not legally tenable, that issue of notice u/s. 143(2)was incidental to re-assessment proceedings, that reassessment was not vitiated because a notice u/s. 143(2)was not issued. Finally, he decided the issue, remanded by the Tribunal, against the assessee. 3. Before us, the Authorised Representative(AR)stated that the proceedings initiated u/s. 147 were without jurisdiction, that same were initiated to circumvent the non issuance of notice u/s. 143(2) of the Act, that it was not permissible under the law as what could not be done directly could not be done i....
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....ctions 143 (2) was beyond time limit prescribed by the Act. He relied upon cases of Hotel Blue Moon (321 ITR 362), Late J. M. Scindia (300 ITR 193) and (227 CTR 387). He further submitted that if the assets were introduced in AOP, then, as per the provisions of section 45 (3) of the Act, that market value could not be replaced for original value, that while filing the return of income amount recorded in the books of accounts was rightly shown as the consideration for the plot of land. He also referred to the decision delivered by the B bench of the ITAT Mumbai in the case of Meenakshi Metallics Pvt. Ltd (IT(SS)A No. 116/Mum/2007. dtd. 13. 04. 2012). 5. Departmental representative (DR) submitted that notice issued under section 143 (2) of the Act was not contested by the appellant company during assessment proceedings, that section 292BB of the Act was applicable in the case under consideration, that the assesseecompany was barred from taking the issue of service of notice issued under section 143 (2) once it was not raised before the AO. He relied upon judgements of Panchavati Motors Private Ltd. (12 taxmann. com111), Aravali Engineers (P) Ltd. (11Taxmannn. com291). In rejoinder....
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....sed for the first time before the Tribunal. But, in the case under consideration, the assessee had raised the objection before the FAA and the issue was decided against the assesseecompany by the FAA. The assessee has challenged the said adjudication of the FAA before us. In form number 36 filed by the assessee, it has been clearly mentioned that there was violation of provisions of section 143(2) of the Act. Thus, the facts of the case under consideration are different from the case laws relied upon by the DR. It is true that in the case of Hotel Blue Moon, the issue before the Hon'ble Supreme Court was about block assessment and that the matter under consideration is not related with Chapter XIVB of the Act. But, the broad parameters laid down by the Apex court in that matter are of binding nature. Here, we would like to mention a few important facts regarding issue under consideration: i). Notice under section 143 (2) of the Act was issued by the AO beyond the stipulated time provided in the Act. ii). Assessment year under consideration is prior to assessment year 200809. iii). Provisions of section 292BB are applicable from 1st of April 2008. 7. 1. In light of above....
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.... portion of the decision of Sri Ishwar Sadan Co-op. Housing Society(supra). One of us was party to that order and it reads as under: "2. The brief facts of the case are that the assessee is a registered Cooperative Housing Society. The return of income was filed on 22. 08. 2002 declaring the total income at Rs. Nil. The same was processed u/s. 143(1) of the l. T. Act. Subsequently, it was learnt that the assessee had entered into an agreement for sale/transfer of TDR/FSI with Narang Developers Pvt. Ltd. , for a consideration of Rs. 55, OO, OOO/. Since this transaction was not disclosed in the retum of income fIled, the assessment was reopened u/s. 147 of the l. T. Act by issue of notice u/s. 148 of the l. T. Act. 3. Through grounds no. 1 & 2, the assessee has raised the contention that no notice u/s. 143(2) was issued to the assessee under the reopened assessment proceedings u/s. 147 r. w. s. 143(3) of the Act. The Id. AR has submitted that the issuance of notice before reopening of the assessment was mandatory. He has relied upon a decision of Hon'ble Supreme Court styled as CIT & Another Vs. Hotel Blue Moon" (2010) 229 CTR (SC) 362, wherein Hon'bIe Supreme Court, wh....
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....sequence of reopening u/s. 147 were bad in law and cannot be sustained and are accordingly set aside. 6. Since, while deciding the above ground nos. 1 and 2, we have set aside the reopened assessment proceedings itself, hence, the consequential other grounds of appeal (i. e. , ground nos. 3 & 4) have become infructuous and rendered academic in nature and as such do not require any adjudication at this stage. In view of our above findings, the additions made/confirmed by the lower authorities are accordingly set aside. " Finally, we would like to refer to the decision of Santosh G Sawant(supra). In paragraphs no. 5-6 and 8-12 the issue has been discussed elaborately as follow: "5. Before us, the ld. Representative for the assessee has raised a preliminary objection that the assessment pursuant to issuance of notice under section 148 is null and void ab initio, because the mandatory notice u/s 143(2) of the Act was not issued before completion of assessment. He submitted that the impugned notice u/s 143(2) of the Act is mandatory in nature and in the absence of issuance of such notice, the impugned reassessment proceedings could not have been proceeded with. For this proposi....
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....ax Appeals No. 77/2012 and 78/2012 are concerned, in both these appeals, the ITAT has held that the issuance of notice after reopening of the case was mandatory and this order is under challenge. It is contended that the said order is contrary to the provisions of Sections 292BB which was introduced by the Finance Act 2008 w.e.f. 01. 04. 2008, in which it is stated that in a case where an assessee has appeared in any proceedings or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of the said Act which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of the said Act. Perusal of the order of the ITAT reveals that this aspect was not canvassed before the ITAT. 5. Apart from that, it is an admitted position that no notice under Section 143(2) had been issued while making assessment under Section 143(3) read with Section 147. The Apex Court in the case of National Thermal Power Co. Ltd. vs. Commissioner of Income- Tax, report in 229 ITR 383 has held that the Tribunal has discretion to allow or not to allow a new ground to be raised. But in a case where....