TaxTMI 
TaxTMI 
2022 (2) TMI 1141
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.... u/s 144 of Income-tax Act, 1961 instead of u/s 143(3) of Income-tax Act, 1961, which proves that Assessment framed by him was without application of mind and in post haste manner and the Worthy CIT(A) has impliedly approved it without going through the facts and without adjudicate on this ground of appeal as accordance with law. 3. That the Ld. Assessing Officer has erred in law for assuming jurisdiction to make reassessment u/s 148 without fulfilling the mandatory requirement of service of notice u/s 148 of Income-tax Act, 1961 within stipulated period as provided by law as well as reopening based on AIR information only and the Worthy CIT(A) has impliedly approved it without adjudicate on this ground of appeal and to that extent the order of the Worthy CIT(A) is totally bad in law and contrary to the procedure of law. 4. That the Ld. Assessing Officer has erred in law while re-open the assessment that two notices u/s 148 were issued to the assessee with different numbers for the same assessment year on 29/3/2016 simultaneously and two assessments were also framed by the Ld. AO for the same assessment year on 8/11/2016 & 27/12/2016, which is totally bad in law a....
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....the Ld. Assessing Officer has acted post haste in framing exparte assessment without affording reasonable opportunity of being heard to the appellant and accordingly the appellant was prevented by sufficient cause in not being able to represent his case and the Worthy CIT(A) has similarly erred on facts and in law in confirming the same. Without prejudice to above contention about the orders being illegal, null and void. 10. That on facts and in law the Ld. Assessing Officer and the Worthy CIT(A) both has failed to take cognizance on the source of deposit with concrete evidences produced before them and both of them has added as escaped income without giving any reason as well as without application of mind, which is contrary, arbitrary and illegal as per procedure of law. 11. That on facts and under law, the additions of Rs. 1,82,93,187/- being cash deposit in banks and Rs. 146047/- being interest income are uncalled for and needs to be deleted. 12. That the appellant craves leave to add, amend or withdraw any new ground or grounds of appeal before or at the time of hearing of appeal." 3. Succinctly stated, on the basis of information receive....
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....1,82,93,187/-; and (ii) interest credited in the bank accounts : Rs. 1,46,047/-. 6. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. 7. We have heard the Ld. Authorized Representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR in order to support his respective contentions. Before us the Ld. AR has challenged the validity of the reopening of the assessee's case on multiple grounds, viz. (i) that a perusal of the 'reasons to believe' on the basis of which the case of the assessee had been reopened clearly reveals non-application of mind by the AO to the material available on record; (ii) that the Pr. CIT had granted his approval/sanction for reopening the case of the assessee in a mechanical manner, i.e, without any application of mind; (iii) that the notice u/s 148 of the Act was never received by the assessee prior to framing of the reassessment in question; and (iv) that the AO had taken recourse to parallel assessment proceedings and, by issuing two separate not....
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....source of cash deposit of Rs. 95 lac (supra) in his bank A/c, and had thereafter framed the impugned assessment in question vide his order passed u/s 144 r.w.s 147, dated 27.12.2016, determining the assessee's income at Rs. 3,79,71,240/-. At this stage, we may herein observe, that as the reassessment proceedings in the case of the assessee for the same year, i.e A.Y 2009-10, were initiated by the AO, i.e., ITO, Ward-5(2), Amritsar, on the basis of two Notices u/s 148, dated 29.03.2016, both of which were backed by separate reasons to believe, viz. (i) Notice u/s 148, dated 29.03.2016 that was issued for the reason, that the assessee had failed to prove the source of the cash deposit of Rs. 43.47 lacs in his bank A/c (Page 33-34 of APB); and (ii). Notice u/s 148, dated 29.03.2016 that was issued by the same A.O, i.e, ITO, Ward-5(2), Amritsar, for the reason, that the assessee had failed to prove the source of the cash deposit of Rs. 95,00,000/- in his bank A/c (Page 38 & 39A of APB), therefore, it is absolutely incorrect on the part of the A.O, as stated by him at Page 1 - Para 2 of his impugned assessment order passed u/s 144 r.w.s 147, dated 27.12.2016, that a Notice u/s 148, date....
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....38 of APB) the reference number therein mentioned is 11517 a/w EP 37063115 7 IN (bar code). On the basis of the aforesaid reference numbers mentioned on the face of the aforementioned Notices u/s 148, dated 29.03.2016, it can safely be inferred that the Notice u/s 148, dated 29.03.2016 that was issued by the AO, for the reason, that the assessee had failed to prove the source of the cash deposits of Rs. 43.47 lac (supra) in his bank account was issued anterior/prior to the other notice. Apart from that, the fact that the reopening of the assessee's case u/s 147 of the Act, for the reason, that he had failed to prove the source of the cash deposits of Rs. 43.47 lac (supra) in his bank account had thereafter culminated into an assessment u/s 147 r.w.s. 143(3), dated 08.11.2016, while for the impugned reassessment proceedings taken recourse to by the A.O u/s 147 of the Act, qua the failure of the assessee to prove the source of cash deposit of Rs. 95,00,000/- in his bank A/c, had culminated into the impugned assessment u/s 144 r.w.s 147, dated 27.12.2016, i.e, much subsequent thereto, also supports our aforesaid conviction. At this stage, we may herein observe, that neither there is a....
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....ously embarking upon two set of proceedings u/s 147 of the Act, in respect of an assessee, for the same year. In our considered view, now when the AO held a bonafide belief that the assessee had failed to explain the source of cash deposits of Rs. 43.47 lacs (supra) and Rs. 95 lac (supra) in his bank accounts, then, he ought to have initiated reassessment proceedings on the basis of his aforesaid belief by issuing one Notice u/s 148 of the Act, and could not have taken recourse to initiation of piecemeal reassessment proceedings qua both the aforesaid issues. Apart from that, we are of the considered view, that during the pendency of the reassessment proceedings initiated in the case of an assessee u/s 147 of the Act, the AO is divested from assuming jurisdiction and proceeding with another set of reassessment proceeding qua the same year in the hands of the said assessee. Be that as it may, we are unable to persuade ourselves to subscribe to the second set of impugned reassessment proceeding initiated by the AO in the case before us, which thereafter had culminated into the impugned order u/s 144 r.w.s 147, dated 27.12.2016. Our aforesaid conviction is supported by the judgment of....
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....eopening would not arise. As noted, in case of Ranchhoddas Karsondas (supra), the Supreme Court had taken a view that till the assessment proceedings are pending, it cannot be stated that there was escapement of income. To our mind, there is no distinction whether the pending assessment is pursuant to the return filed by the assessee originally or in response to the notice of reassessment issued by the Assessing Officer. In either case within the contours of the provisions for assessment, the assessment of the income of the assessee at the hands of the Revenue is at large. 8. We are conscious that the conclusion that we have arrived at, may lead to a piquant situation for the revenue. In a given case, it may so happen that notice for reopening may have been issued within the period of four years from the end of relevant assessment year, on the reasons recorded, which may have no relevance to non disclosure of material facts. After four years it is entirely possible that the Revenue may chance upon further materials not disclosed by the assessee in the original return or during the assessment proceedings which may have a bearing on income escaping assessment. The suggestion....
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....he return filed by the assessee was no return, the conditions of section 34 (of the Act of 1922) would apply and the Assessing Officer could carry out the assessment." 17. When therefore in the present case the first notice of reopening of assessment was not withdrawn, there was no scope, nor permissible in law to issue fresh notice of reopening. Counsel for the Revenue, however, vehemently contended that such withdrawal of notice of reopening must be deduced from facts and attendant circumstances. His contention was that the Revenue had, all along, intended to withdraw the notice and the fact, that such notice was abandoned, was sufficient to establish withdrawal thereof. We, however, hold a slightly different belief. A notice of reopening which is once issued would remain in operation unless it is specifically withdrawn, quashed or gets time barred. First instance would be at the volition of the Assessing Officer as the person who had issued the notice. He can recall the notice for valid reasons and may even issue a fresh notice which is not impermissible in law. Nevertheless, there has to be an action of withdrawal. Mere intention, a stated intention or even an intentio....
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.... law, we are of the considered view, that the reassessment proceedings initiated by the A.O, vide the impugned Notice u/s 148, dated 29.03.2016, i.e, during the pendency of the other reassessment proceeding for the year under consideration, cannot be sustained. We, thus, are unable to persuade ourselves to subscribe to the validity of the reassessment proceedings, i.e, the proceedings that had culminated into the impugned assessment order u/s 144 r.w.s 147, dated 27.12.2016. 10. Apart from that, we find that the Pr. Commissioner of Income Tax-II, Amritsar despite the aforesaid serious infirmity, wherein the AO, i.e, ITO, Ward-5(2), Amritsar had on the same day, i.e, 28.03.2016 approached hi for his sanction/approval for taking recourse to parallel reassessment proceedings against the assessee, i.e, for the same year and, he had in a most mechanical manner, on the same day, i.e, on 28.03.2016 granted his sanction/approval as contemplated in sub-section (1) of section 151 of the Act, i.e, for both the reassessment proceedings that were taken recourse to by the A.O. On a perusal of the sanction granted by the Pr. Commissioner Of Income Tax-II, Amritsar, we find that on both the occ....