AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 324
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....case of late Shri Dinesh Kumar Goyal Assessment Year 1996-97 1. The ld. CIT (A) has grossly on facts and in law in dismissing the legal issue challenging validity of notice issued u/s 148 for escapement of income within the meaning of sec. 147 explanation 2(a) read with section 150(1) of the Act, holding that this issue has been decided by the Hon'ble ITAT while deciding ITA No. 64/lnd/2014 dated 29-02-2016. 2. The ld. CIT (A) has grossly erred in ignoring the issue that the set aside assessment made on 27-12-2016 has been made in the name of deceased Sh. Dinesh Kumar Goyal, when it was in the knowledge of AO that the assessee had expired on 26-02-2015. Therefore, the assessment made by the AO in the name of the deceased person is bad in law and my kindly be quashed Without prejudice to the above The ld. CIT (A) has erred on facts and in law in confirming addition of Rs. 250,000/- made on account of unexplained cash credit is the name of Smt. Laxmi Kanta Goyal. ITA No.545/Ind/2017 in the case of late Shri Dinesh Kumar Goyal Assessment Year 1997-98 1. The ld. CIT (A) has grossly erred on facts and in law in dismissing the leg....
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....ng the issue challenging validity of notice u/s 148 within the meaning of see. 147 explanation 2(a) r.w.s. 150(1) of the Act, holding that this issue has already been decided by the Hon'ble ITAT while deciding ITA No. 62/lnd/2014, dated 29-02-2016. 3. The ld. CIT (A) has erred in not deleting addition of Rs. 170,000/- being estimated profit on estimated sales, where as he has deleted such addition in the A.Y. 1996-97, in view of decision of Hon'ble ITAT in ITA No. 573/lnd/05, dated 19-09-2008. ITA No.548/Ind/2017 in the case of Smt. Laxmi Kanta Goyal Assessment Year 1999-2000 1. The ld. CIT (A) has grossly erred on facts and in law in ignoring the facts that the reassessment proceedings irritated u/s 148 r.w.s. 147 explanation 2(a) on 28-03-2006 were void ab initio as these were based on fallacious assumption that the aggregate bank deposits of Rs. 1,85,553/- constituted undisclosed income of the assessee overlooking fact that source of deposit need not necessarily be income of the assessee, as such, the notice was issued without application of mind by the AO for verification of source of bank deposits and did not fulfill the requirement of law fo....
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....Ujjain to consider the matter afresh and also decide the legal issue for reopening the case u/s 148 of the Act. The Ld. CIT(A) has further not decided the legal matter for reopening the case u/s 148 of the Act and dismissed the appeal of the assessee for non appearance. The assessee has further appeal to the ITAT, Indore Bench Indore and the said case was dismissed for non appearance. The assessee filed for restorance of appeal and the same was accepted by the Bench and the appeal was restored. Tribunal in its order dated 29.2.2016 ob observing that the Ld. A.O has passed the order u/s 144 and added the entire creditors, unsecured loans and thereafter the investment made in building is also added in the income estimated on the turnover shown in the profit and loss account attached with the project report, again directed the Assessing Officer to make fresh assessment, Ld. A.O framed the assessments on 29.12.2016 after making certain additions against which the assessee preferred appeal before Ld. CIT(A) and partly succeeded. 6. Now the assessee is in appeal before the Tribunal raising various issues including this common legal issue challenging the validity of the reassessment pr....
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....he contentions of the appellant are carefully examined. In the facts and circumstances of the case, no return having been filed even in response to notice u/s 142(1), issue of notice u/s 148 is found to be perfectly justified, considering AO's report and accordingly there is no merit in such ground of appeal and the same is rejected. 6.2 The AO has himself noted that the amount added a capital balance was shown by the appellant in the balance sheet filed before the bank for the previous year relevant to AY 97-98 and accordingly there was absolutely no case for considering this amount as unexplained opening balance for the year under consideration. If the AO was of the view that such amount was not properly and adequately explained, he should have immediately taken recourse to appropriate proceedings for AY 1997-98 and earlier years as the facts of the case warranted. The AO when directed to submit a further report after enquiry also has done previous little to justify the addition made. It is admitted position that no return of income was filed by the appellant for any AY prior to AY 98-99 for several years. In that view of the matter, considering the facts of the case and....
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.... On the basis of the finding given by Ld. CIT(A) referred above in para 6.1, 6.2 and 7, the Assessing Officer issued notice u/s 148 of the Act for assessing the income of the assessee for Assessment Year 1996- 97 and 1997-98 on 27.5.2005. Now whether this action of the Assessing Officer of issuing notice u/s 148 of the Act merely on the basis of finding given by Ld. CIT(A) allegedly directing the Assessing Officer to reopen the cases for Assessment Year 1996-97 and 1997-98 by issuing notice u/s 148 of the Act can be held to be justified needs to be examined in the light of the legal pronouncements as well as the undisputed fact that the cases have been reopened after the lapse of 4 years from the end of the relevant assessment years and the material evidence was only in the form of direction given by Ld. CIT(A). 13. We find that the Hon'ble jurisdictional High Court in the case of Computer Science Corporation (India) (P) Ltd V/s Addl. CIT (supra) held that the "direction given by CIT(A) shall not be construed to be of binding nature by the AO and it will be open for AO to proceed with the assessment proceedings in accordance with law, uninfluenced by the said impugned observ....
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....uence of or to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, reference or revision or by a Court in any proceeding under any other law. (2) The provisions of sub-section (1) shall not apply in any case where any such assessment, reassessment or recomputation as is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or recomputation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, reassessment or recomputation may be taken." The aforementioned provision although appears to be of a very wide amplitude, but would not mean that recourse to reopening of the proceedings in terms of sections 147 and 148 of the Act can be initiated at any point of time whatsoever. Such a proceeding can be initiated only within the period of limitation prescribed therefore as contained in section 149 of the Act. Section 150(1) of the Act is an exception....
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....e. Learned counsel for the Department argues that the comprehensive phraseology used in the proviso takes in its broad sweep any finding given by the appropriate authority necessary for the disposal of the appeal or the revision, as the case may be, and to any direction given by the said authority to effectuate its finding and that the said finding or direction may be in respect of any year or any person. As the phraseology used in the proviso is not clear or unambiguous. the question raised cannot be satisfactorily resolved without having a precise appreciation of a brief history of section 34 of the Act culminating in the enactment of the proviso in the present form." (p. 339) This Court noticed the development of law as also the fact that the decision of the Income-tax Officer given in a particular year does not operate as res judicata to opine: "The lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing Tribunal within the scope of its jurisdiction. If the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as a provi....
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....lacious assumptions by acting only on the directions of Ld. CIT(A) who is legally not having such powers to give direction to reopen the assessment. It is also not disputed that the Ld. A.O has not taken the prior approval of Joint Commissioner of Income Tax u/s 151 of the Act before issuing notice u/s 148 of the Act which is a mandatory requirement. In our considered view the Assessing Officer has simply acted upon i.e. initiated the reopening proceedings on the directions of Ld. CIT(A) and has totally ignored his part of the job i.e. his satisfaction. Respectfully following the above judgments of Apex Court and other lower courts, we are of the considered view that the notice u/s 148 of the Act issued for escapement of income within the meaning of Section 147 of explanation 2(a) read with section 150(1) of the Act for Assessment Year 1996-97 and 1997-98 in the case of Smt. Laxmikanta Goyal and Late Dinesh Kumar Goyal through his legal heir Smt. Laxmikanta Goyal are against the settled principles of law and are thus void ab initio. We accordingly set aside the finding of both the lower authorities and quash the impugned assessment proceedings in the case of both the assessee's for....
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.... (vii) Saraf Gramodyog Sansthan V/s ITO (2007) 108 ITD 115 (Agra) (viii) C.M. Mahadeva V/s CIT ITA No. 795/2009 (Karnataka High Court) dated 24.08.2015 (ix) Prashant S. Joshi V/s ITO (2010) 324 ITR 154 (Bombay) (x) Ingram Micro (India) Exports (P) Ltd V/s DCIT (2017) 78 taxmann.com 140 (Bombay) (xi) CIT V/s Expeditors International India (P) Ltd (2012) 18 TAXMANN.COM.29 (Delhi) (xii) CIT V/s Mohmed Juned Dadani (2014) 355 ITR 172 (Gujarat) (xiii) ACIT V/s Major Deepak Mehta (2012) 344 ITR 641 (Chattisgarh) (xiv) CITV/s Jet Airways (I) Ltd (2011) 331 ITR 236 (Bombay) (xv) Ranbaxy Laboratories Ltd V/s CIT (2011) 336 ITR 136 (Delhi) (xvi) CIT V/s Ram Singh (2008) 306 ITR 343 (Raj.) 19. Ld. Counsel for the assessee also challenged the reopening and submitting that the Ld. A.O proceeded on the fallacious assumptions that the bank deposits constitutes undisclosed income and he completely over ruled the fact that the sources of deposits need not necessarily be the income of the assessee. From the point of view of the department it can be a case of examination and verification but then the reassessment proc....
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....f Mandsaur Commissioner Cooperative Bank Neemuch in which the assessee Smt. Laxmikanta Goyal W/o Shri Dinesh Goyal Neemuch has paid more than 1,85,553/-. The assessee has not filed return of income. I have therefore reasons to believe that the income of Rs. 1,85,553/- chargeable to tax has escaped assessment within the meaning to explanation to (a) of section 147 of the IT Act. For the A.Y. 1999-2000. Send proposal to Hon'ble JCIT Ratlam range, Ratlam for his kind approval for issue of notice under section 148 for A.Y. 1999- 2000" 22. The above impugned notice issued u/s 148 of the Act was issued alleging the escapement of income of Rs. 1,85,553/- which was the total of various deposits in the bank account held by the assessee at Mandsaur Commissioner Co-Operative Bank, Mandsaur. However from perusal of the impugned assessment order we find that the addition was made for un-explained investment in construction of building at Rs. 9,62,800/- which was subsequently scaled down to Rs. 3,81,460/-by Ld. CIT(A). However no addition has been made by Ld.A.O for the alleged bank deposits at Rs. 1,85,553/-. In the given facts whether the Ld. A.O can assess other income of the assessee ....