TaxTMI 
TaxTMI 
2021 (11) TMI 852
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....d 13/11/2019. 2. At the outset, confirmation was sought by the Bench from Sh. Srivastava, the ld. Counsel for the assessee, as to if the assessee had filed any Appeal or Cross Objection in respect of the impugned order, to which he replied in the negative, further clarifying that the same is being contested on merits, i.e., qua each of the Grounds of Appeal assumed by the Revenue, which are as under: (i) Whether on the facts and in the circumstances of the case, the ld. CIT(A) was justified in deleting the addition of Rs. 16,69,585/- on account of unexplained investment. (ii) The appeal is being filed against falls under exceptional clause of para 10(c) of the Boards' Instruction No. 3/2018 dated to 11/07/2018. 3. It was, to begin wit....
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....it of the exception stated at para 10(c) and, accordingly, be admissible. Toward this, Sh. Srivastava would draw my attention to the Audit Objection dated 12/4/2016 (APB pgs. 10- 12), beneath which itself the Assessing Officer (AO), i.e., ITO, Ward 1, Rewa, has, vide his response thereto dated 13/4/2016, stated that the audit objection is not acceptable as the assessee had explained the investment under reference, i.e., for Rs. 16.69 lacs, for which explanation was sought from him, and addition qua which is the subject matter of the instant appeal. He has, in fact, he would further submit, also stated it to be a case of change of opinion. The audit objection, he concluded, has not been accepted by the AO for the Revenue to invoke the except....
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.... be argued, as indeed it was before me, that the very fact of the Revenue having issued notice u/s. 148 on 29/3/2019 is by itself a proof of it having accepted the audit objection and, thus, falling within the exception u/c. 10(c). The argument, impressive at first blush, is, however, facile and, in any case, not borne out by the record. The AO is categorical in his comments dated 13/4/2016 to the audit objection, making it abundantly clear that the same is unwarranted inasmuch as the assessee had explained the investment under reference, and would, in any case, be a change of opinion. The subsequent issue of the notice u/s. 148 in March, 2019, is, therefore, and, on the contrary, a non-acceptance of the AO's non-acceptance of the audit obj....
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....erverse, i.e., a view no person properly instructed on facts and in law could take, as where the said reply is irrelevant or does not meet the letter dated 22/2/2016 by the AO. I am conscious, while so discussing, that there is no challenge to the notice u/s. 148(1) by the assessee, which aspect, i.e., the validity of the reasons recorded u/s. 148(2) or of the assumption of jurisdiction u/s. 147, must, therefore, be regarded as having attained finality. The present discussion only seeks to emphasize the non-sustainability of the argument advanced by the ld. Sr. DR inasmuch as there has been, both factually or legally, no omission to consider the assessee's explanation qua the impugned investment during the original assessment proceedings, n....