AI Drafter 
TaxTMI 
TaxTMI 
2021 (6) TMI 95
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....tion of mind. 4. That the Id . CIT(A) has erred in holding that the notice u/s 148 was legally valid and has failed to consider the fact that the notice u/s 148 was never served upon the assessee and was returned back to the Department unserved on 10th of April 2017 and, as such, the proceedings are void-ab-initio 5. That the notice u/s 148 of the Act has not been served as per section 282 of the Income Tax Act read with CPC procedure. 6. Notwithstanding the above said ground of appeal, the Ld. CIT (A) has erred in confirming the addition of Rs. 28,60,000/- as unexplained investment by not considering our submissions properly. 7. That the Appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off 2. Inviting attention to grounds 1 to 5 raised herein above, it was his submission that by way of these grounds, the assessee has challenged the jurisdiction and vide ground No. 6 the challenge is posed on the merits of the addition made. 3. Addressing the respective orders of the tax authorities, the ld. AR challenged the order on the ground that the order for want of jurisdiction deserves to be....
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....d. For ready reference, para 1 to 4 of the synopsis being relied upon is extracted hereunder: 1. The case of the Assessee was reopened by issue of notice u/ sec 148 of the Act. 2. Such case was reopened based on information about a property purchased by the appellant to the tune of Rs. 63.51 lacs and the Assessing Officer ('AO') framed the Assessment assessing the income at Rs. 28.04 lacs for the share of the appellant in such property. 3. The assessment was framed ignoring the facts that: The notice for attaining jurisdiction i.e. notice u/ sec 148 was never served on the assessee and The submissions explaining the sources of such purchase of property which were duly brought on record by the assessee for Rs. 27.81 lacs being 42.78% of Rs. 65.41 of whole property transaction value (i.e. Rs. 63.51 lacs Transaction value & Rs. 1.9 lacs Stamp Duty)). [Reasons at Page-1 Paperbook ('PB')]. 4. The assessee filed an appeal before the CIT(A), Karnal, and duly explained that the proceedings itself were void in case of the appellant; in the absence of valid service of notice u/ s 148 & in the absence of valid reasons to believe for....
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.... the assessee till date is attached at Pages 4-5 of the PB. It is also submitted that once the assessee, duly challenged the non-service of the notice issued u /s 148 during the assessment proceedings itself, the onus of having served the said notice u /s 148 on the assessee lied with the AO only. Also, no affixture order was made in order to ensure service as per the procedure laid down under in Section 282 (1) of the Act read with Order V Rule 12 CPC and Order III Rule 6 CPC for service of notice and thus even on this basis the service of notice was not properly made. The above clearly shows that no action was taken by the AO to ensure the service of such notice and no such proof of service was brought on record by the Ld. AO. Thus, the action of the AO in re-assessing the income of the assessee u / s 147 r.w.s. 143(3) of the Act was without jurisdiction and deserves to be reduced to nullity. Reliance in this regard is placed on the following judgments: Commissioner of Income Tax V/s Chetan Gupta 62taxmann.com249 DEL-HC (Pages 15-29 of Jug Set) Shri Rathi Steel Ltd. V/s Assistant Commissioner of Income Tax 104 taxmann.com 400 ....
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....aulty reasons to believe must be restored to nullity. Reliance in this regard is placed on the recent judgement of the Hon'ble ITAT, Amritsar in the case of Gaurav Joshi vs ITO, as reported at 197 TTJ 946 Asr-Trib., placed at Pages 30-35 of the judgement set, wherein the assessment was held to be invalid for factually wrong reasons recorded as the amount alleged m reasons to be deposited hi bank and actual amount deposited were found to be different during the assessment proceedings. Monika Rani vs ITO in ITA No.582/Chd/2019 dated 28.02.2020 Sagar Enterprises vs. ACIT (2002) 257 ITR 335 (Gujarat High Court) Harjeet Singh Vs ITO (ITAT Delhi), order dated 12.11.2018, in ITA No. 2013/DEL/2015 KMV Collegiate Sr. Sec. School v. ITO (2017) 163 ITD 653(Asr.) (Trib.): From the above discussion, it is evident that both the reasons recorded by the AO for reopening the completed assessments of the assessee are based on factual errors, rendering the notice issued u/s 147, finding its basis in the aforesaid reasons, to be an invalid notice, in keeping with the decision of the Hon'ble Supreme Court in 'Kelvinator of India Ltd.' (supra)....
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.... the grounds that it evaded the issue. 7. The order was assailed on the ground that the approval granted was assailed as a mechanical exercise of power and hence the order deserves to be quashed on the basis of the following submissions : 1. The assessee clearly brought on record the evidences in support of her claim. However, the AO clearly ignored the submissions of the assessee made in this regard. Infact, on an inspection of the file a copy was taken of the evidences filed by the assessee in support of her claim. Your attention is brought to the fact that the assessee was maintaining a list of remittances in a hand-written diary and the typed version of which containing the details of the remittances received by the assessee's husband and her close relatives from her son Sh. Daljinder Singh living abroad, directly or indirectly was duly placed on record, showing evidence of source of fund Rs. 20 lacs approx. received from abroad. Also sample Money gram and Western union receipts were duly placed on record. Copy of sample Western union receipts Placed at Pages 39-40 of the PB and copy of list of remittances placed at Page 46 of the PB. Also, the copy of ....
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....py of the letter filed on 18.12.2017 to the JCIT, Kurukshetra for intervention u/s 144A of the Act in case of the assessee vii) Copy of the reply of the assessee filed on 26A2.20M as filed before the AO, again explaining the sources of purchase of the share of the assessee in the impugned property purchased during the relevant period along with the following relevant annexures: i) Copy of the bank passbook of the husband of the assessee Sh. Swaran Singh, with State Bank of Patiala Pehowa Branch updated till the relevant period ii) Copy of the detailed list of remittances received by the assessee & her family from their relatives abroad viii) Copy of the reply of the assessee dated 27.12.2018 as filed before the Worthy CIT(A), Karnal in the first stage appellate proceedings. 10. The ld. Sr.DR relied upon the impugned order. The arguments on facts on the legal issue of the maintainability of the addition on merits were not specifically addressed. 11. I have heard the submissions and perused the material on record. It is seen that the assessee has consistently maintained its challenge that notice was not issued as it has not been served. The t....
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....fficer himself while making the addition were un-disputably clear as is evident from Paper Book pages 10, 11, 11A and 12 the conclusion that admittedly its proper consideration escaped the notice of not only the A.O. but the approving authority also is clearly evident from record. Thus not finding fault in the manner of the specific words recorded in the order to grant approval, which has been the crux of ld AR's argument the objection is sustained on the fact that no care or attention evidently was taken to consider the bare preliminary facts itself and the power was exercised mechanically without examining the record. An authority vested with the onerous powers of re-opening u/s 147 and granting of approval is expected to exercise its power consciously, carefully and with full awareness. The public at large cannot be put to the mercies of careless, casual, arbitrary or whimsical exercise of power. The order deserves to be quashed on this count itself. Ordered accordingly. 12. Since arguments have been advanced on merits also I deem it appropriate to address these. On a careful consideration of explanation offered right at the assessment stage partially recorded in the orde....