TaxTMI 
TaxTMI 
2015 (1) TMI 1387
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....ing the additions which were made without giving property opportunity of being heard. iii) On the fact s and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the status of the appellant as Resident when in fact the appellant had returned the income in the status of Non Resident and that no evidence was brought record by the Assessing Officer that the appellant was a Resident of India during the relevant period for Assessment Year 1999-2000. iv) On the fact s and in the circumstances of the case and in law, the learned CIT(A) erred in allowing 10 % of expenses of Rs. 32.488/- instead of allowing the expenses of Rs. 32.488/- which comprised main expense on account of depreciation of Rs. 17550/-. v)On the fact s and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the addition of Rs. 2,58,738/ - being F.D' s. as unexplained investment , ignoring the fact that the sum total of F.D's is on account of renewal of the F D' s. of Rs. 78,022/ - on 10.06 1998 being the renewal of F 0 brought forward cum earlier year and renewal of the same on 2409 1998. 11 12 1998 and on 2503.1998 ....
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....his F D stood in the name of appellants daughter Ms. Sap V Adnani was produced before the Assessing Officer and the C.I,T.(A).l vii)The appellant craves leave to add. alter, amend or delete any ground(s) of appeal either before or during the course of hearing of the appeal." ITA No.2968/M/2011-AY.2004-05: "i)On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in dismissing the ground regarding the issue of limitation U/s. 153 of the Income Tax Act, 1961 in respect of the validity of the assessment proceedings and thereby no penalty could be levied in the case of invalid assessment, on the ground that this issue was not raised before either the Assessing Officer or the CIT(A) in appeal against the Assessment Order U/s. 143(3). ii) On the facts and in the circumstances of the case and in law, the learned C.l.T.(A) erred in relying on the decision of the C.I.T.(A) in appeal against order U/s. 143(3) without considering the facts and legal submissions submitted to the Assessing Officer as well as to the CIT(A) that no addition on account of unexplained CDF of Rs. 1,14,97,340/- & of cash deposit of Rs. 2,44,076/- in the Pu....
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....e Income Tax Act, 1961. However, the case being a search case, the plea raised by the assessee needs to be seen in the light of the provisions of section 153A extracts of which is reproduced below : X X X X X The search in the case of above mentioned assessee was conducted on 05-01-2005. Thus, it is squarely covered by the provisions of section 153A which do not require the sanctions or approvals as well as reopening criteria mentioned by the assessee in the plea raised before the ITAT. It needs to be pointed out that issuing of notices uls.148 for A.Yrs. 1999-2000 to 2004-05 by the AO is an inadvertent mistake. As such, notices uls.153A should have been issued for A.Yrs. 1999- 2000 to 2004-05 and not uls.148. Notwithstanding the fact that an inadvertent mistake in not mentioning section 153A in the body of the order shall not render the assessments invalid, if the intent and purpose of initiating such proceedings and consummated and in view of what is stated in the body of the order with regard to the seizures, the intent and purpose of the proceedings uls.153A and 153B of the act are well established. Further, provisions of section 292B clearly....
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....f natural justice, you are requested to kindly condone delay in filing the cross objection, which is purely unintentional and only procedural. Thanking you in anticipation of favourable consideration." From the above it is clear that the AO has not described so-called 'unavoidable circumstances', in the letter filed before the Tribunal, that caused delay of more than five years. Only on this ground the CO.s. can easily be dismissed. But, we would like to deal with CO.s., as the filing of CO.s.is the part of the chain of events that are not normal. First the AO issues passes order u/s.147 without taking prior approval of the authorities concerned, then when the assessee raises issue of prior approval by raising additional ground before the Tribunal it is stated that these matters were covered by the provisions of section 153A of the Act. But, strangely the JCIT in of his reports and the AO in reply to a query made under RTI Act states that no search action had taken place in the case under appeal. Besides, without highlighting the so called unavoidable circumstances the AO filed CO.s. after more than 1800 days. In the succeeding paragraphs, we would mention the facts relate....
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....d u/s.148 for six years and that there was nothing on record to aver that proceedings u/s.153A had been initiated. 4. In this background, we are taking up the jurisdictional issue. Before us, the Authorised Representative(AR)contended that if the assessment were completed u/s.147-148 of the Act prior approval of the CIT/CCIT had to be taken for issuing notices, that there was no evidence that such permission was requested for or was granted, that if there was a search the notices should have been issues as per the provisions of section 153A of the Act, that notices issued under a particular section cannot be deemed to have been issue under another section, that section 292 B could not cure the defects of jurisdiction. He relied upon the cases of Abhay kumar Shroff(290 ITR114), Ranchodas Karsonda(36ITR569)Sheila Jaggi(84ITR50)Rajendra Shah (247 ITR 772),V. Ramaiah (356 ITR 646),Sunrolling Mills.P. Ltd.(160ITR412),Ramballabh Gupta(288 ITR 347).He referred to the remand report of the JCIT, the application made the assessee to the AO under the RTI Act and the reply to it. Departmental Representative(DR)argued that notices issued under section 148 of the Act should be treated as noti....
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....the Hon'ble Jharkhand High Court has, in the case of Abhay Kumar Shroff (290ITR114),held as under: "From a bare reading of the provisions of sections 153A, 153B and 153C of the Income-tax Act, 1961 and the Departmental Circular No. 7 dated September 5, 2003, it is manifestly clear that after May 31 ,2003,the earlier provision of block assessment in the case of search 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 ....
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.... assessments. In this sense, there is no hostile discrimination between the two categories of persons." From the above it is clear that for the actions taken w.e.f.01.06.2003,assessments will have to be completed as per the scheme of section 153A.The section provides for issuing of notice for assessing or reassessing the income of an assessee. From the 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 recour....
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.... filing returns, is not a mere inconsequential technicality. It is a requirement of the provisions of O.5, r. 1(3) of the Civil Procedure Code, 1908, which are applicable by virtue of the provisions of section 282 of the Act. Section 282 of the Act provides that a notice under the Act may be served on the person named therein as if it were a summons issued by a court under the CPC,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 pursuan....
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....ws that it is mandatory that every return should be signed and verified and if it is not signed and verified, then it is in breach of the provisions of section 140 of the Act. Therefore, this cannot be a defect which can be cured as per the provisions of section 292B of the Act and any return filed without signature and verification of the assessee will not be treated as a valid return. 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 ....
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....can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers 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 fai....