TaxTMI 
TaxTMI 
2023 (2) TMI 254
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.... of the case in deleting Rs. 1,24,00,000/- which was added to the income of the assessee on account of as unexplained share application money. 2. That the commissioner of Income Tax (Appeals) has erred in law and on facts of the case in not discussing the issue and facts of unexplained expenditure raised by the AO in his assessment order on basis of which addition of Rs. 1,24,00,000/- was made. 3. That the commissioner of Income Tax (Appeals) has erred in law and on facts of the case in deleting Rs. 16,47,32,566/- which was added to the income of the assessee on account of as unexplained deposits. 4. That the commissioner of Income Tax(Appeal) has erred in law and on facts in relying on the submissions filed by the assessee which were inadequate, incomplete and inadequate and that they were not authentic and were not able to prove the creditworthiness of the parties from which investments/deposits were made. 5. That the commissioner of Income Tax(Appeal) has erred in law and on facts in relying on the submissions filed by the assessee which were inadequate, incomplete, not genuine, not reliable and already rejected by AO during the assessment stage. 6. That the commi....
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....allenged u/s 264 of the Act before the ld. CIT(A) and the ld. CIT(A) had declared the assessment order null and void. 7. Pursuant to the order of the ld. CIT, notice u/s 148 of the Act was issued and served upon the assessee and the reasons were supplied. We find that in the case in hand, similar order was framed u/s 143(3) r.w.s 153C of the Act and the order was challenged before the ld. CIT u/s 264 of the Act and the said order has been declared null and void. 8. In the case in hand, again pursuant to the order of the ld. CIT u/s 264 of the Act, notice u/s 148 of the Act was issued and served upon the assessee and reasons recorded for reopening the assessment are identical to the reasons recorded in the case of M/s Sam Portfolio Pvt Ltd, though quantum may differ. 9. We further find that the quarrel in relation to the assessment order in the case of M/s Sam Portfolio Pvt Ltd travelled upto the Tribunal and the Tribunal in ITA No. 6218/DEL/2015 and CO No. 403/DEL/2015 vide order dated 20/02.2020 has annulled the assessment order. 10. On finding parity on the facts of the case in hand with the facts of the case of M/s Sam Portfolio Pvt Ltd [supra], we have no hesitation in adop....
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....n during the assessment year. The assessee hasn't filed any documentary evidence to establish the identity and capacity of the persons who have allegedly given share application money or to establish the genuineness of these transactions. Hence, sum to the tune of Rs.42,00,000/- is required to be added to the income as it has escaped assessment, on protective basis in interest of revenue. D) From perusal of the bank statements and other documents is its seen that there are unexplained deposits other than cash to the tune of Rs.8,17,10,951/-. These deposits are unexplained even after considering the unexplained other liabilities, share capital & share premium. Hence, sum to the tune of Rs.8,17,10,951/- is required to be treated as unexplained other deposits, which has escaped assessment on protective basis in interest of revenue. It is further stated that assessee was done of the intermediary companies used by Shri Aseem Kumar Gupta for providing accommodation entries as admitted by Shri Aseem Gupta. I, therefore, have reasons to believe that this amount of Rs.8,60,27,610/- represents income of the assessee chargeable to tax which has escaped assessment for A.Y. 2008-09. The nece....
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....proceedings vide notice dt. 22nd March, 2004 shows that the same reasons have been recorded which were stated in the earlier notice served under Section 148 of the Act on the basis of which the assessment was made on 14th Feb., 2003 and which was quashed being barred by limitation. Thus, from the facts itself, it is crystal clear that though the present proceedings were initiated by the AO within the prescribed period of limitation yet it is clear that the same were initiated only to circumvent the earlier order of the Tribunal vide which the assessment dt. 14th Feb., 2003 was held to be time-barred. Thus, the AO cannot be allowed to initiate fresh proceedings on identical facts as the first assessment proceedings had failed to result in a valid assessment due to lapse on the part of the IT authority. Resultantly, the appeal is allowed and the order of the Tribunal is set aside." 14. The Hon'ble High Court of Rajasthan in the case of M/s. Rameshwar Prasad Sharma in ITA No.642/2011 dated 04.09.2017 at the occasion to consider inter alia the following substantial question of law. "1. Whether the tribunal was legally justified in reversing the finding of CIT(A) and annulling the....
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.... It is further provided that AO may assess or reassess such income other than income involving matters which are subject matter of any appeal, reference or revision which is chargeable to tax and has escaped assessment. After analyzing the provisions of section 147, we are of the view that there was no material with the AO to hold any income has escaped assessment. Original return was filed u/s 139(1) which was subject matter of scrutiny assessment and assessment u/s 143(3) was completed. Huge additions were made, they were challenged before ld. CIT(A) and on legal point it was found that the assessment completed by issuing notice u/s 143(2) issued was barred by limitation. Since, the first assessment was subject matter of appeal before appellate authority, therefore, on the same issue when it was found that assessment has been annulled it cannot be a subject matter of reopening of the assessment. Thee must be some fresh material or new information which authorizes the AO to issue notice u/s 148. There are so many cases when return had been filed by the respective assessee has been accepted u/s 143(1) on the same material. No notice u/s 148 can be issued as held by various courts. ....
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.... basis of material found during survey subsequent to assessment on 18.3.03. Therefore, we are of the opinion that tribunal rightly decided the issue in favour of the assessee and first issue is required to be answered in favour of the assessee. With regard to second issue in view of finding on issue no.1, this issue is also answered in favour of the assessee." 16. The coordinate bench in the case of Babulal Lath in ITA No.3532/Bom/1994, 83 ITD 0691 has held as under: "The original assessment had to be quashed by CIT(A) as the proceedings by way of issue of notice under Section 143(2) were initiated beyond time. The reassessment proceeding under Section 147 was initiated by the AO and the total income was assessed at Rs. 21,15,040 as was determined in the original assessment. Thus, it appears that reassessment proceeding was initiated not because any income had escaped assessment to tax but to circumvent the time-barred assessment. Thus, the reassessment proceeding under Section 147 amounts to extending the limitation which the AO is not empowered to. It is trite law that limitation period under Section 143 cannot be extended by an IT authority and it is also quite recognised ....
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.... assessment automatically stands deleted." 17. The coordinate bench of Chennai in the case of Jaya Publications 123 ITD 0053 has held as under: "The CIT(A) has set aside the assessment which means that he annulled the assessment, since he has not given any direction to redo the assessment. As such, the AO as no jurisdiction to pass any further order. He is duty-bound to follow the direction of the CIT(A) and he cannot sit over the order of the CIT(A), who is a superior authority. The remedy lies with the Department and he has to file an appeal against the order of the CIT(A) if they have any grievance. In the present case, instead of filing the appeal in time against the CIT(A)'s order the AO made a fresh assessment without jurisdiction and which is against the law on the facts of the case and not sustainable in the eyes of law.-Fu Sheen Tannery & Anr. vs. ITO (2003) 185 CTR (Cat) 76 : (2003) 262 ITR 456 (Cal) relied on" 18. Considering the facts of the case in hand in totality as explained hereinabove in the light of the plethora of judicial decision discussed hereinabove. We are of the considered view that the AO has wrongly assumed jurisdiction in framing the assessment....
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....eizure operation u/s 132 of the Act was conducted on 26.03.2010 at various premises of Aseem Kumar Gupta, his associates & Other Beneficiaries. During the search & seizure operations various documents, books of account, hard disk etc. were seized. On perusal of the seized documents, it was noticed that some of these documents belong to the assessee which inter alia include the following: Page 62, of Annexure A-15 seized by party SG6, is bill raised by the assessee company. Pages 81 to 84, of annexure A-16 seized by party SG6, are the financial statements of the assessee company, Pages 62 to 70, of Annexure A-36 seized by party SG6, are extracts from the books of account such as ledger of share capital, share premium, balance sheet and trial balance of assessee company for the year 2007-08. In view of the above, and considering the fact that documents and books of accounts seized during the search belong to the assessee, I am satisfied that, the assessee's case is a fit case for initiating proceedings u/s 153C of the income Tax Act, 1961. Accordingly, action u/s 153C of the Act is initiated for the Assessment Year 2004-05 to 2010-11. Issue notice u/s 153C of the Act ....
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....e Commissioner of Income Tax (Appeals)-XXXII in the case of S.G. Portfolio Pvt. Ltd. A.Y. 2004-05 to A.Y. 2009-10. Vide his order in Appeal No. 347 to 352/11 -12/(A)-32, the CIT(A)- XXXII annulled the assessment order by stating as under:- "I have considered the findings recorded by the AO in the impugned assessment order as well as in the remand report, the submissions of the appellant and its rejoinder on the issue and the facts on the record. As can be seen from the remand report, various annexures i.e. A-15, A-17 and A- 36 which were referred to in the satisfaction recorded u/s 153C as seized documents were actually not seized but impounded during an action u/s 133A of the Act, as stated by the AO. Thus, it can be seen that the AO had no jurisdiction u/s 153C which specifies that only seized or requisitioned documents / assets only can be the basis of proceedings under the said section. I am, therefore, compelled to hold that the assessment was wrongly framed in this case under the said section. Thus, the assessment proceedings for all the Assessment Years under consideration were without any jurisdiction, hence the same are held to be ultra various (sic) rendering the asses....