TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1259
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....brought into India by the Appellant on visits to India, in the accounting year relevant to the Assessment Year in Appeal, as per the CDF Form, copies of which were obtained from the DRI's office. The Appellant used to Take Back his Foreign Exchange brought by him visiting to India, on return to Hong-Kong, where he was permanently residing. This fact has been ignored by the Assessing Officer, and the C.I.T. (A) while confirming the addition of Rs. 2,10,30,089 relying upon the Appellate Order of the C.I.T. (A) for other years which are in Appeal before the I.T.A.T. iii) On the facts & in the circumstances of the case and in law, the learned C.I.T. (A) erred in confirming the findings of the Assessing Officer that the Cash deposits of Rs. 14,78,072 in the Punjab and Maharashtra Co-op. Bank Ltd., in the name of Mr. Subodh Thakur, as benami holdings of the Appellant and, therefore, the said amount of Rs. 14,78,072 is assessable in the hands of the Appellant as unexplained cash credit. iv) On the facts & in the circumstances of the case and in law, the learned C.I.T. (A) erred in Disallowing a sum of Rs. 1,01,553 as interest payable on the loan of Rs. 12,51,395 from his wife, o....
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....re 31.03.2007 whereas, as a matter of fact, the same was framed vide order dated 31.12.2007. We also find that in the assessee's own case the coordinate Bench of this Tribunal, vide its order dated 14.09.2016, for A.Y. 2002-03 in ITA NO.2321/Mum/2014, relating to the same search, has held that the assessment order passed by the Assessing Officer is invalid as being barred by limitation. The relevant paragraph is reproduced as under: 3. After hearing the rival submissions and perusing the material on record, we find that the issue raised in ground no.2 by the assessee qua the assessment order passed is barred by limitation as the same was passed after the last date on which the order should have been passed by the AO. The issue has been settled by the coordinate bench in the earlier years in the assessee own case in ITA No 2968/M/2011 (supra) in the same search assessment. The operative part of the decision of the co-ordinate bench is reproduced as under: "4. Considering the above, we are of the opinion that one of the issues for determination is whether the present proceedings which were taken in pursuance of notice u/s.148 dated 20.02.2006 for AY.s.1999-2000, 2000-01, 2001-02....
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....earch initiated against the assessee, shall not apply. Instead, the provision that there shall be single assessment on undisclosed income comprising previous years relating to six assessment years preceding that in which the search was conducted, shall apply. It further provides that the Assessing Officer shall issue notice to such person requiring him to furnish return of income in respect of six assessment years immediately preceding the assessment year relating to the previous year in which the search was conducted under section 132 or requisition was made under section 132A of the Act. The second proviso to section 153A makes it clear that assessment or reassessment relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requisition under section 132A shall abate. In other words, if on the date of initiation of search or requisition under section 132 or section 132A any assessment or reassessment proceeding is initiated relating to any assessment year falling within the period of six assessment years, it shall stand abated and the assessing authority cannot and shall not proceed with ....
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....records and the Grounds of Co.s.it clear that though in the cases under consideration notices had to be issued u/s.153 A of the Act, but were not issued. The AO had issued notices u/.148 of the Act. Issue of notice u/s.153A and 148 has been decided by the Hon‟ble M P High Court, in the case of Ramballabh Gupta (288ITR347), as under: "In order to decide the legality and validity of the notice issued under section 148 of the Income-tax Act, 1961, it is necessary to see as to whether the conditions precedent provided in section 148 are satisfied or not. Once the conditions prescribed under section 148 are found present in the notice issued, in that event, the notice has to be upheld having been issued in conformity with the requirement of section 148. The only fetter put on the powers of the Assessing Officer in taking recourse to section 148 is that it cannot be issued in relation to those six assessment years which are defined in section 153A.(emphasis supplied). In all other cases and for all other assessment years section 148 can always be resorted to subject of course to the condition that it must satisfy the requirement specified in section 148." 4.3. Now, we would t....
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....,1908. Sub-rule (3) of r. 1 of O. 5 of the CPC provides that every summons shall be signed by the judge or such officer as he appoints. Therefore, in view of this provision, the notice to show cause why penalty should not be levied by the ITO should be signed by the AO and the omission to do so invalidates the notice and in such a situation section 292 B will not come to rescue of the AO. iv.) Section 292B might apply to a case where service of notice had already been effected and there is only a technical mistake in the notice. But, where no notice had been served, the section would not come to the help of the Department e.g. if a notice is not issued to a minor or to his guardian or the Karta of the HUF and such notice affects the rights of the minor adversely, the proceedings initiated in pursuance of that notice cannot be cured by the provisions of section 292B of the Act. v.) Where an assessment order containing computation of income is signed by the AO, but the computation of tax made on separate sheet of paper is not signed by him, the assessment cannot be held invalid. In such cases, courts are of the views that it is not a case of non-compliance with mandatory provis....
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....n. xiii.) Time barring assessment does not come within the purview of mistake, defect or omission referred in section 292B of the Act. In Peeru Lal, Mohan Lal (257ITR198), Hon‟ble Rajasthan High Court held that the expression "mistake, defect or omission" cannot be understood as one of procedure, so as to override the limitation prescribed by law. xiv.) Cancelling the registration of the firm on the ground of error in the allocation of shares among the partners, without issuing notice under section 158r.w.s.187 and 67 of the Act proposing to change the share allocation among the partners, involves question of jurisdiction and therefore direction given to AO to modify the order u/s.158 cannot be sustained by relying on section 292B. xv.) Provisions relating to issue of notice for block period are considered procedural and not substantive in nature. Therefore mention of block period wrongly in notice cannot render entire assessment a nullity as the defects are curable under section 292B.Secondly,in block assessment if a notice is issued under section 158BC r.w.s.158BD of the Act and the AO fails to mention Sec. 158BD in the notice, it is not considered fatal. It is sai....
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....rs from an inherent lacuna affecting his /its jurisdiction, the same cannot be cured by having resort to section 292B." If the facts of the case under appeal are considered in light of the above discussion, it becomes clear that the provisions of section 292B are not applicable. In the cross objections the AO wants us to treat us the assessment completed u/s.148 as assessment finalised u/s.153A of the Act. In our opinion, both the sections deal with different situations and notice issued under one section cannot be treated notice under another section nor can be assessment made under a particular section can be treated as finalised under another section. Section 147-148 deal with re-assessing of income for a particular AY. that escapes taxation because of the failure of the assessee or othrerwise. Section 153A deals with the matters where action has been taken u/s.132 or 132A of the Act. Each and every section of the Act has been included in the statue with a specific intention and purpose. The Legislature in its wisdom has introduced various section to regulate the tax collection. So, to assume that one section is re-placable by another is not a logical or legal conclusion. Each....