TaxTMI 
TaxTMI 
2020 (1) TMI 780
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.... Act,1961 (hereinafter referred to as "the Act") passed on 10.11.2014 by the Assistant Commissioner of Income Tax, Circle-1, Hooghly (hereinafter referred to as "the Assessing Officer"). The appeal was filed on 08.12.2014.The ITNS was sent on 21.09.2015 and it is accordingly concluded that the appeal is filed within stipulated time and is accordingly heard on merits. 2. Aggrieved with the purported assessment order passed u/s. 154 of Act by the AO, the appellant has raised the following grounds:- 1. FOR THAT none of the conditions precedent required to be satisfied for the assumption of jurisdiction U/3. 154 of the Income Tax Act, 1961 existed and/ or have been complied with by the Ld. Income Tax Officer, Ward 1, Bankura (hereinafter referred to as the Ld. Assessing Officer for the sake of brevity) and the basis of the impugned order passed u/ s. 143(3)/154 of the Income Tax Act, 1961 without satisfying the conditions precedent therefore and hence therefore ab initio void, ultra vires and ex-facie null in law. 2. FOR THAT the Ld. Assessing Officer misled himself and acted precipitately in resorting to a catastrophic addition of Rs. 27,88,995/- without con....
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.... the provisions of s. 154 of the Income Tax Act, 1961 is restrictive and extends only to errors which are beyond the pale of any argument. However, it was entirely a matter of subjective opinion of the Ld. Assessing Officer to arrive at the conclusion that the cost allocation in respect of sold area of Apartment no. 5 was higher whereas the same for unsold area was lower. Such an assumption cannot be the subject matter for presuming jurisdiction u/ s. 154 of the Act and the notice issued in this regard and. the order passed in pursuance thereto is outside the scope of such enactment. No authority can pass a valid order by exceeding powers vested in him under the law and the provisions of s. 154 of the Act excludes bringing into play such an action, as resorted to by the Ld. Assessing Officer in the instant case, as otherwise there would be no limit whatever in taking recourse to such provision to the detriment of assessees at his sweetwill. The Legislature in its wisdom specifically precluded such an invasion upon the rights of the assessee simply and specifically providing that only mistakes "apparent from record" are embraced within the scope thereof, It is most respectfully cont....
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....HALOTIA (1994) 74 TAXMAN 34 (CAL), when a mistake has to be discovered on the interpretation or the construction of the provisions of the Act, it could never be a mistake apparent from the record. Again, in the case of BATA INDIA LTD. -VS- I.A.C. (2001) 249 ITR 491 (CAL), where the alleged mistake pertained to ascertain the correctness and incorrectness of the assessment order, then there would be an occasion for reopening of this assessment order resulting inevitably in a debatable issue on the allowability of a deduction, which was allowed in the previous assessment years, therefore there was neither any subsequent development nor any occasion to depart from the stand taken by the department on earlier occasion. Similarly in the instant case, the Ld. Assessing Officer has sought to reopen an item from the assessment order under the garb of s. 154 of the Act which is impermissible in law. It is, thus, conclusively established that the Ld. Assessing Officer exceeded his jurisdiction in this respect and as such, the order passed in pursuance to notice u/ s. 154 of the Income Tax Act, 1961 is ex-facie ultra vires, ab initio void and null in law. Without prejudice to the afor....
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.... of construction does not warrant application of provisions of s. 69 of the Act. It is reiterated that the appellant has duly appropriated the cost of construction in actuality and thus, it goes without saying that it would be monstrously impossible to treat the investment as undisclosed. In this connection, it is apt to refer to the decision of Apex Court in the case of C.I. T. - vs- P.K. NOORJAHAN (2000) 237 ITR 570 (SC), wherein it has been held that mere rejection of an explanation would not automatically entitle the Assessing Officer to conclude that the assessee had concealed the particulars of income and for that purpose addition envisaged u/ s. 69 of the Act shall not be warranted. When the stand of the appellant is vindicated by proven facts, there cannot be any further onus fastened on him in that regard. The law does not allow the discretion of an omnibus option to the Assessing Authority to act otherwise or other than in consonance with proven facts. That being so, the addition made invoking the provisions of s. 69 of the Act is liable to be deleted." 5. I have heard the contentions of the AIR of the appellant and gone through the assessment order fram....