TaxTMI 
TaxTMI 
2020 (8) TMI 720
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....share premium. During the course of scrutiny proceedings for such year, it was submitted on behalf of the assessee that the share premium was received during the financial year 2009-10 relevant to the assessment year 2010-11 and, therefore, does not belong to the assessment year 2011-12. Assessee also placed evidences in that respect. On verification of record it was found that the assessee company did not file any return of income for the assessment year 2010-11. 3. Notices under section 148 and 142(1) of the Act, were therefore, issued. On 29/12/2015, a letter was filed on behalf of the assessee along with the acknowledgement of return of income for the assessment year 2010-11 dated 4/12/2015, declaring nil income. Assessee requested for reasons recorded and the same are furnished. Subsequently, by way of letter dated 7/3/2016 the assessee requested for the approval of the JCIT for the opening of the case. Assessing officer observed that in this case, the provisions of section 151(1) of the Act were not applicable, as the case falls within 4 years, and there was no need to take any prior permission from the JCIT. Assessee challenged before the, learned Assessing Officer, that ....
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....entity, genuineness, and creditworthiness of the parties from whom such share capital, including share premium was received, Ld. CIT(A) held that the assessee company failed to discharge the owners and as in many cases share capital/share premium was not received through banking channels and was received through book entry by increasing the share capital and share premium and correspondingly increasing the loan and share capital of other companies and, therefore, addition of Rs. 25,07,50,000/- made under 68 of the Act was justifiable. So also, Ld. CIT(A) upheld the addition made under section 14A of the Act. Consequently, Ld. CIT(A) dismissed the appeal of the assessee. 6. Aggrieved by the findings of the Ld. CIT(A), assessee preferred this appeal initially challenging the assessment order passed under section 147/144 of the Act on the ground that it was bad under law for non-compliance with the requirement under section 148 of the Act in respect of proper service of notice, and also the observations of the Ld. CIT(A) that the assessee was not interested in prosecuting the appeal. Subsequently assessee filed additional grounds of appeal, pleading that no notice under section 143....
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....nder section 143(2) of the Act, it is the submission on behalf of the assessee that no notice was issued under section 143(2) of the Act and therefore, the assessment made without issuing notice under section 143(2) of the Act is bad under law. He submitted that by way of reply dated 29/12/2015 assessee submitted before the assessing officer that the assessee had already furnished the return of income on 4/12/2015 in response to the notice issued and section 148 of the Act, but in spite of the said fact, learned Assessing Officer never issued in a notice under section 143(2) of the Act, nor any discussion was made in the assessment order. Ld. AR submitted that in view of the decisions of the Hon'ble Supreme Court in the case of CIT vs. Laxman Dass Khandelwal 417 ITR 325 and of Hon'ble Delhi High Court in the cases of PCIT vs. Silver line 383 ITR 455, CIT vs. Delhi Kalyan Samiti in ITA No. 696/2015, PCIT vs. Atlanta capital private limited in ITA No. 665/2015, PCIT vs. Shri Shawshankar traders 383 ITR 448 and PCIT vs. Paramount Biotech industries Ltd 398 ITR 701, any such assessment so framed without issuance of notice under section 143(2) of the Act is illegal and without jurisdict....
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....der and section 144 read with section 147 of the Act on 28/3/2016. 12. Ld. DR further submitted that there was a recovery survey conducted on the assessee on 6/3/2020 on the addresses given by the assessee at both the places, but it was found that no such company exists at the above-mentioned addresses. For all these reasons, Ld. DR submitted that the orders of the authorities below do not suffer any legality regularity and there is no need to interfere with the same. 13. We have gone through the record, in the light of the submissions made on either side. It is an admitted fact that the notice under section 148 of the Act was issued by the learned Assessing Officer on 30/3/2015 and claimed to have served the same by way of a fixture at the old address. Revenue pleads that it was only subsequent to the issuance of notice under section 148 of the Act the assessee furnish the new address vide letter dated 18/3/2016; whereas the contention of the assessee is that as on 30/3/2015 they have already communicated the change of address to the assessing officer, and this fact is borne on record. Assessee places reliance on the intimation under section 143(1) of the Act for the assessm....
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....l.com. On the other hand, the snapshot of the MCA record available with the learned Assessing Officer, copy of which is filed at page 7 of the paper book, clearly shows that the email ID of the assessee is [email protected]. It is, therefore, difficult for us to hold that there is any proper service of notice under section 148 of the Act on the assessee. Further, there is no denial of the fact pleaded by the assessee that the assessee was being assessed by the ITO, Ward No. 5 (3) till the assessment year 2013-14 and the return of income for the assessment year 2013-14 was also filed before the, Ward number 5 (3). 17. The other circumstance that is brought to our notice by the Ld. AR and on verification of the order sheet entries made by the learned Assessing Officer what we found is that the order sheet entries do not contain any entry regarding the issuance of notice under section 148 on 30/3/2015, nor about the service thereof, in as much as subsequent to the entry regarding the recording of reasons on 20/3/2015, the next entry is dated 3/6/2015 and the order sheet silent as to the proceedings that it took place on 30/3/2015. Further, under order V, rule 17 of the code of c....
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.... the Act, it was submitted that the return of income was filed on 4/12/2015 in the proceedings initiated under section 148 of the Act, and, therefore, if the assessing officer proposes to proceed with the assessment proceedings, it is incumbent upon him to issue notice under section 143(2) of the Act. Further, it is not the case of the learned Assessing Officer, as could be seen from the assessment order, that the return of income filed on 4/12/2015 had to be treated as invalid. On the other hand, learned Assessing Officer took cognizance of the return of income so filed by the assessee and proceeded to complete the assessment with the additions in question. Arguments of Ld. DR on this aspect is not supported by the assessment order. 21. The argument that in cases where the assessee failed to file the return of income for the relevant assessment year within the time prescribed in the notice issued under section 148 of the Act, the said return would be invalid one and has to be ignored by the learned Assessing Officer, in which case, no notice under section 143(2) of the Act is required to be issued to the assessee and the assessment framed under section 144 of the Act would be v....