TaxTMI 
TaxTMI 
2022 (9) TMI 692
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....s & law while the addition is being made then the deduction be allowed for the payment made and (or) the loss of capital be granted. 5. Because the action is under challenge on facts and law, the authorities below has never tried to issue notices u/s 131/133 to call & summon for the information/ affidavits from the management of the school and the students who has paid the fees to the appellant and subsequently the appellant's transfer of fees to the management of school which is substantiated through the ledger account of the appellant who was actually & factually receiving fees on behalf of the management of the school where she was a Principal during the year under consideration. 6. Because the prayer is for kindly allowing any addition, modification, deletion, amendment in the grounds of appeal along with the consequential benefit thereon before the disposal of the appeal in the interest of substantial justice for a decision in accordance with law. 2. The ld. AR inviting attention to the grounds raised submitted that vide ground No.1 the challenge is posed on the jurisdictional issue. Vide ground No.2 the challenge is posed to the merits of the addition....
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....rring to the impugned order, it was his submission that this ground was taken up before the CIT(A) who has not disputed the fact that the notice had been sent at the incorrect address and only on 06.11.2017, notice was finally sent to the assessee at the correct address. Not disputing the fact that it was the first notice sent in the eyes of law, the CIT(A) incorrectly referring to Section 292BB concluded that since the assessee participated in the proceedings, accordingly, the said ground was to be dismissed. 6. Inviting attention to the copy of the reasons recorded at page 2, it was again highlighted that while recording the reasons also, the AO has taken note of the old incorrect address and in terms of the decision dated 11.09.2020 of the Jaipur Bench of the ITAT in the case of Girirajkripa Developers Pvt. Ltd. Vs ITO (ITA No.168/JP/2020 placed at Paper Book pages 36-66) it was his submission that on the jurisdictional issue itself, the assessee deserves to succeed. 6.1 It was his submission that this issue has specifically been considered at Paper Book, page 63 internal page 28 of the order in paras 12 to 14. Accordingly, it was his prayer that on this ground alone, the ....
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.... Further the AO cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC and Order III Rule 6 CPC. (iii) Although there is change in the scheme of Sections 147, 148 and 149 of the Act from the corresponding Section 34 of the 1922 Act, the legal requirement of service of notice upon the Assessee in terms of Section 148 read with Section 282 (1) and Section 153 (2) of the Act is a jurisdictional pre-condition to finalizing the reassessment. (iv) The onus is on the Revenue to show that proper service of notice has been effected under Section 148 of the Act on the Assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the Revenue has failed to discharge that onus. (v) The mere fact that an Assessee or some other person on his behalf not duly authorised participated in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the Assessee under Section 148 of the Act. (vi) Reassessment proceedings finalised by an AO ....
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....on to the assessment order it was submitted, that the following reply to the AO also stands extracted at page 4 of the assessment order. Thus, it was his submission that all explanations consistently on record with supporting evidences have been shown and are available. Hence, on merits also, no addition, it was submitted, was maintainable. The relevant extract from the assessment order is reproduced hereunder : To The Income Tax Officer Ward-2 Bhiwani, Camp at Jind Sub:- In continuation of Reply dated: -Ref:- Shashi Prabha Tripati H.No. 12, Housing Board Colony, Jind Assessment Year 2010-11. R/Sir Respectfully submitted that in response to Assessment Proceedings for the Assessment Year 2010-11, the goodself issue/demanded . Copy of ITR for the above said assessment year etc. The reply of the same as under:- 1. Copy of ITR for the year under Consideration is attached here to with. 2. Copy of form No. 16 is not avaible as the employer society has wind up its B.Ed College at Village Kinana. The employer Society paid 3 months salary to the assessee through bank a/c @ Rs. 30000/-....
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....f the assessee for the assessment year 2010-11.1 am satisfied that me assessee has concealed the particulars of his income at Rs.41,21,700/-. Accordingly, penalty proceedings u/s 274 r.w.s 271(l)(c) of the Income Tax Act, 1961 are initiated separately. 12. These issues, it was submitted, were carried in appeal before the CIT(A) contending that all necessary facts and submissions stood made before the AO. However, the addition was sustained in appeal. Aggrieved, the ld. AR submitted that the addition was sustained by the ld. CIT(A) on entirely different facts and reasons which were not even the case of the AO. The decision on facts arrived at by the CIT(A) which was assailed by the assessee is extracted hereunder for the sake of completeness : "6.2 Ground No. 2 and 3 are regarding addition of Rs. 41,21,700/-unexplained cash deposited in bank account. The appellant submitted that cash deposited amounting to Rs. 41,21,700/- into her saving bank accounts maintained with PNB, Jind during the financial year 2009-10 relevant to A.Y. 2010-11 was in nature of fee deposited by the student during the year under consideration. The appellant during assessment proceeding submitted co....
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....Institute of Education available to the AO and the CIT(A) for each of the payments received from the students mentioning the name of the student as well as the course and the date on which payment was received by the assessee for the Institute, it was submitted, is available at pages 44 to 71. Apart from that, copies of reply submitted to the AO at page 71-72 and written submissions before the CIT(A) at pages 73 to 75 were relied upon. 13.1 It was his submission that in these facts when the assessee had explained consistently by way of documentary evidences that the payments were received by her on behalf of M/s Ram Narain Institute of Education and these had been deposited in the bank accounts which is being questioned, Cash Book in support of the said claim is made available, the Society documents available confirming this position are available on record. Thus, in this background, addition even on merits could not have been made. Referring to the facts available on record, it was his submission that it may be seen that the assessment year under consideration is 2010-11 i.e. the financial year 2009-10 and the assessment order has been passed on 13.12.2017. The assessee has rep....
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.... the ld. Sr.DR relying upon the impugned order submitted that the case law relied upon by the ld. Sr.DR is not applicable. The assumption of jurisdiction, it was her submission was correct and in accordance with law. It was argued that the challenge of the assessee is without any basis. 17. On merits, the ld. Sr.DR heavily relying upon the impugned order submitted that she would first want to reply to the argument of the assessee pleading that she was not tax literate. It was her submission that it not a question of tax literacy or otherwise at all. It was her argument that it is a case of common sense alone. Since the Institution did have a bank account, the occasion for the assessee to deposit the money in her account it was argued, was against all dictates of common sense itself. As far as the reasons recorded in the impugned order itself, it was her submission that the addition on facts has correctly been made. 18. The ld. AR in reply submitted that the tax authorities have not disputed the correctness of the Cash Book made available to the AO. The AO has referred to this Cash Book even in page 3 of his order wherein he has referred that vide ordersheet dated 29.11.2017 t....
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....s seen that the occasion to make the addition or sustain it in appeal did not arise. The consistent evidence on record remains unrebutted. In the absence of any inconsistency in the assessee's claim and non rebuttal of supporting documents, the addition cannot be sustained arbitrarily. The addition is directed to be deleted. It is also seen that the assessee has raised jurisdictional challenge. On going through the facts available in the assessment order itself which have been extracted in the earlier part of this order it is seen that on the basis of which it has been pleaded that the notices issued at the incorrect address are non est. These have been elaborated at length while recording submissions advanced on behalf of the assessee, I find that the bald finding arrived at by the ld. CIT(A) though does not inspire any confidence in the correctness of the conclusion drawn on assumption of jurisdiction, however, since the addition on merits has been deleted, the jurisdictional issue, accordingly, does not require any specific adjudication. Accordingly, the appeal of the assessee is allowed. 20. In the result, the appeal of the assessee is allowed. Order pronounced in the....