2020 (5) TMI 307

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....ut prejudice to the above legal grounds the learned AO has erred on facts and in law in making the following additions on merits and the Ld. CIT(A) has erred in confirming the same: a. Rs. 25,00,000 on ad hoc basis as unexplained investment in purchases made outside books, stating at page-5, "Keeping in view the figures of purchases, the sundry creditor appears to be on a higher side which is more than 8.5 times which is unbelievable". b. Rs. 10,81,512/- estimating net profit on estimated undisclosed sales, on ad hoc basis stating at page-6, "The assessee has shown sales at Rs. 25,33,095/- only. As no closing stock has been shown the sales is estimated at Rs. 50,00,000/- in the absence of any detail and net profit of 25% is charged to tax". c. Rs. 2,00,000/- on account of short term capital gain, stating at page-6 of the order, "For taking the benefit under section 111-A, the transaction should have been made through recognized stock exchange and secondly the STT and assessed as income from other sources". d. Rs. 86,506/- on account of estimated interest under the head, "INCOME FROM OTHER SOURCES", stating on page-6, "The assessee has declared in....

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....as per PAN card as stated by the Assessee. Since this notice was issued by the Assessing Officer Ward 23(4), the assessee filed his objection on 5/8/2010 and also by Speed Post on 07/08/2010. The Assessing Officer Ward 23(4) issued another notice dated 30/11/2010 for 10/12/2010 and the assessee repeated his objection to the jurisdiction and that the proceedings being carried out by the Assessing Officer Ward 23(4) are illegal and without jurisdiction as well as void ab-initio. Hence, the assessee submitted that the assessee under no obligation had to respond to the same. The Assessing Officer Ward 23(4) passed an exparte order but did not serve the same. However on 21.01.2011, the Assessing Officer issued notice u/s. 221(1) to the assessee intimating an outstanding demand of Rs. 18,93,635/- for AY 2008-09 u/s.144. The assessee filed his letter dated 09.02.2011 requesting the Assessing Officer to give certified copy of the notice of demand u/s.156 and the order on the basis of which, the said demand has been created. Since no action was taken on that request, the assessee filed an application for the same under RTI Act on 17/2/2011, in response to which the Assessing Officer Ward 23....

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....I-A stating, "In the absence of any evidence , the same is not allowed." 4. Being aggrieved by the Assessment Order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR further submitted that the limited issue in this case is whether the Assessing Officer Ward 23(4), New Delhi had acquired proper jurisdiction on the assessee within the meaning of Sec. 120 of the Income Tax Act, 1961. The plain answer as per evidence on record is that he has failed in every respect in this regard. The said Assessing Officer only usurped the jurisdiction in a dictatorial manner, contrary to law which cannot under any circumstances be validated. The facts in this regard are that the assessee filed his return of income with the jurisdictional ITO Ward 39(4), New Delhi at the address of the principal place of business as 4/6D, Deshbandhu Gupta Road, Paharganj, Delhi. There is no dispute that the territorial jurisdiction of this business address falls under the ITO Ward 39(4). The ITO Ward 23(4) New Delhi claimed jurisdiction on the ground that PAN was still lying with on the basis of assessment made by him for AY 2006-07. Accordingly he reque....

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....fixture at the address of Gitanjali Enclave as per his record and not at the address given in the return. Further the affixation is not as per rules. No notice was issued and served as provided in Sec. 282 of the Act and there is no report of any failure to serve the notices in the normal course either by post or through notice server. A detailed write up on the invalidity of affixture was filed before the CIT(A), which has been reproduced by him, in the order, but ignored while rejecting the objection of the assessee. The only notice served on the assessee u/s. 143(2)/142(1) is dated 20.7.2010, which is barred by time and cannot provide jurisdiction for making assessment u/s.143(3), as per settled law. 8. Regarding assessment u/s. 144, the Ld. AR submitted that the question of appearance, therefore, for processing the case does not arise as the fact of acquisition of jurisdiction was never intimated by the ITO Ward-23(4) to the assessee before 30.11.2010, when the ITO dismissed the objection of the assessee by a non speaking letter without evidence. The assessee filed rejoinder to ITO's rejection letter dated 30.11.2010 on 13.12.2010 and thereafter there was no proceedings what....

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....pute that the territorial jurisdiction of this business address falls under the ITO Ward 39(4). The ITO Ward 23(4) New Delhi claimed jurisdiction on the ground that PAN was still lying with the said ward and on the said basis, the assessment has to be made by him for AY 2008-09. Accordingly he requested the ITO Ward 39(4) falling under the charge of a totally different CIT-13 vide his letter No. ITO/ward 23(4)-2009-10/97 dated 29.09.2009 delivered in the office of the ITO Ward 39(4) on 29.09.2009. The submission of the Ld. AR that the ITO Ward 23(4) falling under Pr. CIT 8 had no authority in law to get the file transferred from ITO Ward 39(4) falling under the charge of a different Commissioner, Delhi-13, directly appears to be correct and just, as the Income Tax Act has given a proper guideline as to change of jurisdiction and its procedure. But in the present case, there is gross violation of the procedure laid down in the Act. For seeking transfer of jurisdiction, there is a prescribed procedure in Sec. 127 and the CIT-8 had to refer the issue to CIT-13 explaining the reasons as to why he wants to get the case transferred to him. A regular order u/s 127 had to be passed by P....