TaxTMI 
TaxTMI 
2019 (6) TMI 240
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.... as envisaged in section 282 of the Act. 1.2 Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Id. CIT (A) erred in not upholding the appellant's objection that assessment proceedings conducted by the assessing officer as bad in equity and as he did not initiate the proceeding well in time and took at fag end of time barring period, leaving insufficient time for compliance by appellant and thus deprived the appellant proper opportunity of being heard and concluded the assessment in tearing hurry, without giving a fair hearing and without following the principles of natural justice. 1.3 The Ld. CIT (A) failed to appreciate that: a. merely giving opportunity by the A.O to give information was not by itself good enough to justify the inference of a fair hearing, which is basic principle of natural justice; b. reasonable opportunity should have been given to the Appellant to put forward its case by the AO. c. a fair opportunity is one where the assessee is faced with the tentative conclusion of assessing officer for rebut; and d. it is settled law that assessing officer must procee....
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.... 2.5 The Appellant prays that it be held that the loans received by it were genuine and as such the addition made by the AO by invoking section 68 of the Act be deleted. Ground No. 3: Disallowance of loss on foreign exchange fluctuation loss of Rs, 2.37.86,650: 3.1 On the facts and in the circumstances of the case and in law, the CIT (A) erred in confirming the disallowance of loss of Rs. 2,37,86,650/- incurred by the Appellant due to foreign exchange fluctuation on the alleged ground that the appellant failed to furnish supporting documents. 3.2 He failed to appreciate and ought to have held that: a. the Appellant is in the business of import of goods; b. rates of foreign exchange currencies did fluctuate widely during the relevant previous year; c. corresponding import purchase have been allowed as normal business expenditure in same year and also in earlier assessment years; d. foreign exchange fluctuation gain have been offered to tax and accepted as income in earlier assessment years; e. based on rule of consistency the loss on foreign exchange fluctuation be treated as normal business loss; ....
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.... notice required to be served u/s 143(2) of the Act, has been duly served on the assessee on 27-08-2013 and such notice has been served on or before the due date prescribed under the Act. The AO further observed that the assessee has raised this objection at the fag end of the assessment, when the time limit available for completion of assessment was approaching the last date just to avoid the scrutiny proceedings and also escaped from wrong claim made in respect of various expenses in its financial statements. Therefore, objection raised by the assessee through its authorised representative does not have any merit and accordingly, rejected objection raised by the assessee for non service of notice. 3. Insofar as unsecured loan received during the year, the AO has made addition towards unsecured loan received from Satellite Developers Ltd and Shri Mahendra B Jain on the ground that the assessee has failed to furnish required details to justify creditworthinesss of the person and genuineness of transaction. Similarly, the AO has made addition towards foreign exchange fluctuation loss of Rs. 2,37,86,650 on the ground that although sufficient opportunities have been provided to the....
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....the Ld.CIT(A), after considering relevant submissions of the assessee and also by relying upon various judicial precedents, held that the assessee has not substantiated loan received from director with the balance-sheet and other direct evidences such as availability of own funds in the bank passbook on the date of advancing loan. The assessee has not substantiated loan from Satellite Developers Ltd alongwith relevant evidences like balance sheet, availability of own funds, therefore, he opined that there is no reason to interfere with the findings recorded by the AO to make addition towards unsecured loan u/s 68 of the Act. Similarly, the Ld.CIT(A) has confirmed addition made by the AO towards foreign exchange loss on the ground that the assessee has not filed any evidence to prove loss claimed on foreign exchange fluctuation with necessary details. Although, the assessee has filed certain additional evidences, but such evidence has been filed without filing any formal application for admission of additional evidence, therefore, there is no reason to admit additional evidence filed by the assessee and accordingly, rejected evidence filed by the assessee and confirmed addition made....
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.... the notice despite refusing to accept the notice on the ground that he was no longer the employee of the assessee. He, further stated that even after collecting the notice from the AO, he could not send the said notice to the company, due to change of address of the assessee. The Ld.AR further submitted that the directors of the company have also filed affidavits and reconfirmed the facts stated by the Accountant and also non service of notice u/s 143(2). Consequently, the whole proceedings become invalid and liable to be quashed. In this regard, she relied upon various judicial precedents. The case laws relied upon by the assessee are as under:- I. C1T v. Kanpur Plastipack Ltd. (2018) (256 Taxman 394) SC 2. C1T v. Kanpur Plastipack Ltd. (2017) (390 ITR381) All. HC 3. CITv.ChetanGupta (2016) (382 ITR 613) DelHC 4. CIT v. Dr. Ajay Prakash (2014) (42 taxmann.com 387) All. HC 5. CIT v. Rajesh Kumar Sharma (2007) (165 Taxman 488) Del. HC 6. Addl. CIT v. Prem Kumar Rastogi (1980) (124 ITR 381) All. HC 7. Jayanthi Talkies Distributors v. CIT ( 1 979) (120 ITR 576) Mad. HC 8. Heaven Distillery (P.) Ltd. v. 1....
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....d u/s 143(2) has been served on one Shri Anant Dongarkar. The assessee claims that Shri Anant Dongarkar was a part time accountant, who was employed till 31-03-2011. Thereafter he left the service of the assessee. Therefore, he is not authorised to receive notice or any other communications from the AO in connection with any income-tax proceedings. Therefore, even if such notice is served on the persons, who is not authorised to receive notice from the assessee, it cannot be said that there is a valid service of notice. We further note that the assessee has filed various details to argue that Shri Anant Dongarkar is no longer employed with the assessee at the time of service of notice. In fact, the assessee has filed ledger account copy of salary paid to him as per which he was employed upto 31-03-2011. This fact has been confirmed by Mr. Anant Dongarkar in his affidavit dated 09-04-2019 where he has categorically stated that he left the service of the assessee from 01-04-2011 and also the AO has called him to his office during August, 2013 and forcibly handed over notice u/s 143(2) for AY 2012-13 despite he having refused to accept the notice on the ground that he was no longer....
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....Plastic Packs Ltd (2017) 390 ITR 381 (All). We find that the Hon'ble High Court had an occasion to consider invalid service of notice in the light of provisions of section 148 and held that service of notice to an accountant of the assessee company, who did not have power of attorney to conduct assessment proceedings for that year, was not valid in view of the fact that power of attorney did not include in it any authority to accept any fresh notice. The revenue has filed SLP against order of the Hon'ble High Court and such SLP has been dismissed by the Hon'ble Supreme Court in its order dated 03-07- 2018 where it was held that re-assessment proceedings initiated on the basis of notice served u/s 148 on accountant of the company were vitiated as accountant was not principal officer of company nor was there any material to show that he had been authorised by company to accept any notice. The Hon'ble Delhi High Court in the case of CIT vs Chetan Gupta (2016) 382 ITR 630 (Del) has considered an identical issue and after analysing provisions of section 282(1) read with order 5 Rule 12 of CPC and order 3 Rule 6 of CPC held that notice required to be served u/s 148 has to be mandatori....