TaxTMI 
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2021 (4) TMI 305
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....f the assessment to the assessee also. The A.O. issued statutory notice and called for the details which have been filed by the assessee and examined by the A.O. The A.O. noted that assessee-company is a building developer/ colonizer and dealt in all kind of immovable properties during the year under consideration. The assessee was required to furnish confirmation along with copy of ITR and bank statement of the parties. The assessee has furnished confirmation along with copy of financial statement, copy of bank statement of the parties from whom share application/ share capital money received, notice under section 133(6) of the I.T. Act was also issued and statements of the Directors were also recorded by the A.O. The A.O. was satisfied with the explanation of assessee and thus, the A.O. assessed income of assessee at NIL vide Order Dated 30.06.2014 under section 143(3)/147 of the I.T. Act, 1961. 3.1. The Learned Pr. CIT taken-up the proceedings under section 263 of the I.T. Act, 1961 and issued notice under section 263 of the I.T. Act, 1961 Dated 17.01.2017 which is reproduced in the impugned order in which the Learned Pr. CIT has mentioned that assessee has received accommodati....
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....A.O. also reopened the assessment on identical reasons in the case of the assessee in which the matter travelled to ITAT G-Bench, New Delhi in ITA.No. 7791/Del./2018 and the Tribunal vide Order Dated 01.04.2019 quashed the re-assessment proceedings. The Order of the Tribunal Dated 01.04.2019 is reproduced as under : "IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'G': NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA No.7791/Del/2018 Assessment Year : 2009-10 M/s SBS Realtors (P) Ltd., B-14/C, First Floor, Freedom Fighters Enclave, Neb Sarai, New Delhi - 110 068. PAN : AALCS5106R. Vs. Income Tax Officer, Ward-22(4), New Delhi - 110 002. (Appellant) (Respondent) Appellant by : Shri Kapil Goel and Shri Rajesh Jain, CAs. Respondent by : Shri S.S. Rana, CIT-DR and Shri Rajesh Kumar, Additional CIT. Date of hearing : 11.03.2019 Date of pronouncement : 01.04.2019 ORDER PER G.D. AGRAWAL, VICE PRESIDENT :- This appeal by the assessee for the assessment year 2009-10 is directed against the order of learned CIT(A)-28, New Delhi dated 16th November, 2018. 2. Ground No.1, 1.1 and 1.2....
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....pened the assessment without any independent verification at his end. He, therefore, stated that the alleged reopening of assessment is not valid. He also stated that not only the reasons recorded is mechanical, even the approval given by the Additional Commissioner is mechanical and without application of any independent mind. In support of his contention, he relied upon the following decisions :- (i) Sarthak Securities Co.P.Ltd. Vs. ITO - [2010] 329 ITR 110 (Delhi). (ii) Signature Hotels P.Ltd. Vs. ITO - [2011] 338 ITR 51 (Delhi). (iii) PCIT Vs. G And G Pharma India Ltd. - [2016] 384 ITR 147 (Delhi). (iv) PCIT Vs. RMG Polyvinyl (I) Ltd. - [2017] 396 ITR 5 (Delhi). (v) PCIT Vs. Meenakshi Overseas Pvt.Ltd. - [2017] 395 ITR 677 (Delhi). 4. Learned DR, on the other hand, stated that it is a case where the original return was accepted under Section 143(1) and there was no regular assessment under Section 143(3). The Assessing Officer had received the specific information from DIT(Investigation) that on search in the case of Shri S.K. Jain group of cases, New Delhi, it was found that they were indulging into providing accommodation entries to various assessees. Shri S.K. Ja....
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....iary is given as under as provided by Investigation Wing : S.No. Beneficiaries Name of Entry Provider Amount Total Amount 1 M/s SBS Realtors P.Ltd. S.K. Jain group 235,00,000/- 235,00,000/- In the light of information provided by the investigation wing, it is necessary to examine and verify the genuineness, identification and creditworthiness of the aforesaid transaction. I have perused details of the cheques/PO received by the above company, the amount, the issuing company, the recipient company, middlemen bank etc. as tabulated below: S.No. From company name To company name Name of the issuing bank Chq./RTGS/PO Ch./Date Amount Name of the middle men 1 AD Fin Capital Services P.Ltd. SBS Realtors Pvt.Ltd. Axis P.O. No.023905 17.04.2008 1,000,000/- Rajesh Aggarwal 2 Shakini Holding Ltd. SBS Realtors Pvt.Ltd. Axis P.O. No.025624 10.06.2008 3,000,000/- Rajesh Aggarwal 3 Mani Mala Delhi PRO Pvt.Ltd. SBS Realtors Pvt.Ltd. Axis P.O. No.025623 10.06.2008 2,500,000/- Rajesh Aggarwal 4 Euro Asia Mercantile Pvt.Ltd. SBS Realtors Pvt.Ltd. Axis P.O. No.025622 10.06.2008 2,500,000/- Rajesh Aggarwal ....
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....ain group companies by the Investigation Wing. As per the Investigation Wing, the above cheques paid by S.K. Jain group companies were accommodation entries to M/s SBS Realtors Pvt.Ltd. i.e., the assessee. However, what is the material found during the course of search of S.K. Jain group cases which had led to form the belief that all those companies are providing accommodation entries is not mentioned in the reasons recorded. It is also not mentioned whether any of the directors of the above companies have provided accommodation entries to M/s SBS Realtors Pvt.Ltd. It is also not mentioned whether any document was found which led to the belief of giving of accommodation entries by those twelve companies to the assessee. On receipt of above information, the Assessing Officer compared the figures in the balance sheet of the assessee filed for assessment year 2009-10 and he found that the share capital has increased by Rs. 2,35,00,000/-. After recording the above factual finding, the Assessing Officer has concluded "The same has escaped assessment on account of failure on the part of the assessee to truly and fully disclose all material facts necessary for assessment for the AY 2009-....
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....ion shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished." 7. Thus, if the Assessing Officer considered it necessary to ensure that the assessee has not understated the income, he can issue the notice under Section 143(2). However, proviso to above Section provides the time limit within which such notice can be issued. Once that time limit is expired, in our opinion, the Assessing Officer cannot invoke Section 148 just for the purpose of verification. Therefore, in our opinion, in the case under consideration, the reopening of assessment for the purpose of verification of genuineness, identification and creditworthiness of the transaction is not permissible under law and is liable to be quashed. 8. The learned counsel for the assessee has also mentioned that the notice has been issued mechanically without application of mind and the satisfaction by the Assessing Officer is only the borrowed satisfaction of the Investigation Wing. The Assessing Officer, without applying his mind, has simply on the basis of information of the Investigation Wing jumped to the conclusion that there is escapement of income....
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....further conditions to be nature of discussions or reasons that the Officer authorizing the notice would have to discuss in the note or decision was beyond the purview of the courts and was not justified. The orders of the Appellate Tribunal could not be sustained. The Appellate Tribunal was directed to hear the Department's appeals on their merits." 9. On the other hand, learned counsel for the assessee has relied upon the catena of judgment before and after the date of above judgment of Hon'ble Delhi High Court wherein the notice under Section 148 simply on the basis of report of the Investigation Wing has been quashed. The same is as under:- (i) Sarthak Securities Co.P.Ltd. Vs. ITO - [2010] 329 ITR 110 (Delhi). (ii) Signature Hotels P.Ltd. Vs. ITO - [2011] 338 ITR 51 (Delhi). (iii) PCIT Vs. G And G Pharma India Ltd. - [2016] 384 ITR 147 (Delhi). (iv) PCIT Vs. RMG Polyvinyl (I) Ltd. - [2017] 396 ITR 5 (Delhi). (v) PCIT Vs. Meenakshi Overseas Pvt.Ltd. - [2017] 395 ITR 677 (Delhi). 10. Learned DR has also relied upon few decisions of Hon'ble Gujarat High Court. However, when there are large number of decisions of Hon'ble Jurisdictional High Court, the same woul....
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....formation made available to the Assessing Officer and the formation of belief of escapement of income. There is no basis for coming to the conclusion that the assessee received accommodation entries. The Investigation Wing alleged that the companies which issued cheques to the assessee company are companies of Shri S.K. Jain group and they are entry providers. However, the basis for such conclusion is missing. There is no mention that any document was seized from Shri S.K. Jain group or any director of the 12 companies which have given cheques to the assessee has given the statement that they have provided accommodation entries to the assessee. The Assessing Officer has simply reopened the case on the basis of information provided by the Investigation Wing without any independent application of mind. There is no tangible material which formed the basis for the belief that income has escaped assessment. 12. While taking the above view, we derive support from the latest decision of Hon'ble Jurisdictional High Court in the case of RMG Polyvinyl (I) Ltd. (supra) and Meenakshi Overseas Pvt.Ltd. (supra). In view of the above, we quash the notice issued under Section 148 of the Act ....
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....ral -1, New Delhi pertaining to Assessment Years 2008-09 and 2010-11 respectively. Since both these appeals involve common issues, they are being disposed off by this common order for the sake of convenience and brevity. 2. In both the appeals, the assessee has raised the following additional ground of appeal in addition to the grounds taken in Form No. 36: "That the Pr. CIT has no jurisdiction u/ s 263 of the Act to review and revise an order passed by the Assessing Officer u/s 153C/153A of the Act dated 30.03.2015 which itself was illegal and bad in law due to invalid assumption of jurisdiction as contemplated u/s 153C/ 153A of the Act." 3. Since the additional ground goes to the root of the matter and requires no verification of any fact, the same is admitted for adjudication in light of the ratio laid down by the Hon'ble Supreme Court in the case of NTPC 229 ITR 383. 4. Since the additional ground goes to the root of the matter, the same is taken up first for adjudication. 5. Representatives of both the sides were heard at length. Case records carefully perused. 6. Assessment order dated 30.03.2015 for A.Y 2008-09 was framed u/s 153A r.w.s 153C and 143(3) of the Act....
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....ons in respect of any issue can be made to the assessment under Section 153A and 153C of the Act." 13. The Hon'ble Supreme Court in the case of Singhad Technical Educational Society 397 ITR 344 has also held that in the absence of any incriminating material, no jurisdiction can be assumed by the Assessing Officer u/s 153C of the Act. 14. In light of the above binding decisions, assessment framed u/s 153C of the Act in A.Ys 2008-09 and 2010-11 are without jurisdiction and, therefore, bad in law and deserve to be quashed as null and void. 15. The Supreme Court in the case of Kiran Singh & Others vs Chaman Paswan & ors [1955] 1 SCR 117 has held as under: " It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by con....