TaxTMI 
TaxTMI 
2023 (3) TMI 554
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....ll the evidences and documents filed by the appellant. 5. That the appellant craves leave to add or alter any of the Grounds of Appeal." 2. At the time of hearing no one attended the proceedings. However, it is stated vide letter dated 10.01.2023 that the written submissions dated 12.09.2022 may be considered and the appeal may be decided on the basis of the submissions of the assessee. Under these facts the appeal of the assessee was taken up for hearing in the absence of the assessee and is being decided after hearing the learned DR and on the basis of material available on record. 3. Facts giving rise to the present appeal are that case of the assessee was reopened on the basis that the assessee had deposited a sum of Rs. 31,70,000/- in his savings bank account. The Assessing officer has recorded that in response to the notice u/s. 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), no one attended the proceedings and no return was filed. Therefore, a fresh notice u/s. 142(1) of the Act was issued. Thereafter, the case was fixed from time to time and on 25.02.2015 the assessee filed written reply stating that the return filed on 16.8.2007 may be treated a....
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....TR 249 (Del) Society for Worldwide Inter Bank Financial Telecom 1.3 In his written submission dt. 8.3.202, Ld. DR is trying to take shelter u/s. 292BB of the Act. In this regard, it is to submit that non issuance of notice u/s. 143(2) is a basic jurisdictional error and cannot be cured/condoned by referring to section 292BB of the Act. Ld. DR in his written submission has cited some case laws. These case laws are not applicable on the facts and circumstances of the case, on the grounds mentioned here under:- (i) Broadway Shoe Company 99 taxmann.com 83 (J & K): in this case no return was filed by the appellant. Hence ratio in this judgment is not applicable on the present appeal of the appellant. (ii) Madhya Bharat Energy Corporation Ltd. 337 ITR 389 (Del):-this case was distinguished by Hon'ble Delhi High Court in the matter of Silver Line 383 ITR 455. (iii) Josh Builders and Developers Pvt. Ltd. 79 taxmann.com 435(P & H):-in this case, notice u/s. 143(2) was issued. Issue was regarding the service of notice. In the present appeal, notice is not even issued, hence ratio laid down in this judgment is not applicable on the present appeal of the appellant. Appellant....
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....tten reply with a copy of the acknowledgement of the return already filed on 16.08.2007 may be treated as return filed in response to the notice u/s. 148 of the Act. It was examined and placed on the record by the AO. On this date the assessee was also supplied a copy of the reasons recorded for issue of notice u/s. 148 of the I.T. Act in his case. As per note sheet entry of the AO record on 25.02.2015 the assessee was also asked to explain the source of cash deposits in the bank at Rs. 31,70,000/- as mentioned a copy of reasons supplied to him. On 16.03.2015 Sh. Subhash Gurjar, the assessee attended the assessment proceedings with Sh. P. Narang, Adv. They submitted written reply alongwith various documents regarding sale of his agricultural land measuring 5 kanal-09 Marla against which he filed copy of agreements from different purchasers for sale of said land to explain the cash deposits in his bank account. It was further stated that the sale of said small pieces of lands could not be matured later on due to certain circumstances and the money received by the seller was to be returned to the purchasers through panchayati settlements. The assessee also stated that he sold buffalo....
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....an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was-- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." Since the assessee has participated in assessment proceedings the notice u/s. 143[2] was deemed to have been issued in view of Section 292BB [supra]. Hence, the appellant assessee does not deserve any relief on this count. Case Laws supporting the stand of the revenue : In furtherance of the argument it is humbly requested that the following case laws may kindly be considered with regard to the issue of notice u/s. 143[2] in this case: 1. PCIT Vs. Broadway Shoe Co. [2018] ....
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....92BB of the Act to buttress the contention that non-issuance of notice u/s. 143(2) would not vitiate the proceedings u/s. 147 of the Act. I find that the Assessing Officer has observed as under : "As per record, to enquire into the source of above deposits, various notices were issued from this office to the assessee but nothing was heard from the assessee from 31.07.2009 to 10.02.2014. Accordingly notices u/s. 148 of the Act was issued in this case on 18.03.2014 which was duly served upon the assessee through speed post sent vide dispatch No. 12388 dated 18.03.2014. In response to notice issued, the assessee did not file his return of income. Again notice u/s. 142(1) was issued on 02.09.2014, sent through speed post vide dispatch No. 2010 for 10.09.2014 requiring the assessee to file his return of income for the A.Y. 2007-08. As per record no return was file. Then fresh notice u/s. 142(1) was issued on 20.10.2014 served on the assessee through speed post No. 2927 dated 21.10.2014 for 31.10.2014. It is noticed from the record that Shri P. Narang advocate attended the office and filed his power of attorney and a copy of the return of income dated 5.7.2006 was filed on 26.11.2014 d....
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....essee derives income from rent and income from furniture business during the year. Perusal of the documents submitted by the assessee reveals that the assessee is having in his name only 5 K-09 Marla of agril land at Jhajjar for which Fard/Jamabandi have been filed by the assessee. It is also noticed that there are co-owners of the said land which was stated to be sold to different persons as per details given below:- Land Total consideration Date Baiana received i) 1K -12 Marla Rs. 8,00,000/- 5.4.2006 3,50,000/- ii) 2K-00M Rs. 12,00,000/- 8.4.2006 1,20,000/- iii) 2K- 2.5m Rs. 18,00,000/- 20.11.2006 3,50,000/- The assessee submitted photo copies of the agreements for the above transactions to prove the cash deposits in his bank account. These have been examined and it is mentioned that none of the deal was matured as per date/time mentioned in the agreements and the total amount received by the assessee was to be returned back. Is not tenable because this appears to be exclusively concocted story to only to explain the bank deposits and is rejected. Similarly, perusal of the return of income originally filed also reveals that no agricul....
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....8 of the Act was issued just to make fishing inquiry without being based upon any material evidence; and (ii) that the statutory notice u/s. 143(2) was not issued and served upon the assessee. The assessee has filed reasons as recorded for reopening of the assessment along with paper book. As per this, it was stated that the assessee had deposited a sum of Rs. 31,70,000/- in his bank account. The explanation was sought whether such amount was disclosed in the return of income and source thereof. Therefore, the Assessing officer formed his belief that amount of Rs. 31,70,000/- was chargeable to tax and escaped assessment. I do not see any infirmity into the order of the Assessing Officer so far the first objection of the assessee is concerned, as admittedly there was no disclosure in the return of income relating to this amount as recorded by the Assessing Officer. Moreover, the assessee has not placed on record any evidence suggesting that he had explained the source of cash deposits. It is also transpired from the record that various opportunities were given to the assessee by the Assessing Officer. 8. Now another question comes, whether notice u/s. 143(2) of the Act was issued t....
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....lopers (P.) Ltd. (supra), has been rendered on different set of facts, hence do not help Revenue. From the records placed before me it is evident that AO failed to issue notice u/s. 143(2) of the Act. Hence, the assessment framed by the AO is without authority of law. I hold accordingly. Ground No. 3 of the assessee's appeal is allowed. 11. Apropos to ground No. 4, it is stated that the assessee had filed supporting evidences regarding availability of cash. The assessee has filed a cash flow statement in paper book, which is reproduced as under : Date Particulars Amount Date Particulars Amount 05.04.2006 Om Parkash S/0 Amar Singh 350,000.00 31.08.2006 SELF 500,000.00 08.04.2006 Om Parkash S/0 Amar Singh 150000 Vijay Kumar, Krishan Kumar & Mahender Kumar 120000/- 270,000.00 08.05.2006 Vijay Kumar, Krishan Kumar & Mahender Kumar 410,000.00 26.10.2006 Self 900,000.00 19.09.2006 Vijay Kumar, Krishan Kumar & Mahender Kumar 370000 Cattlesale 80000/- 450,000.00 10.11.2006 Cattle Purchase 200,000.00 30.10.2006 Cattle sale 120000/- Agriculture Income from-J 330000 450,000.00 &....
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....ertain lands and the sale consideration was available with him to deposit such amount in the bank. Learned counsel for the assessee submitted that the authorities below did not consider the evidences. 13. On the other hand, learned DR opposed the submissions and supported the findings of the authorities below. 14. Heard the rival submissions and perused the material available on record. I find that the learned CIT (Appeals) has given her finding by observing as under : "6.2.1 The AO has made addition and rejected the submissions of the assessee after giving finding that the assessee had not shown any agriculture income in his return; the land holding was of the assessee and co-owners and there is no proper documentary 7 evidence to prove that the cash deposits are from the proposed sale of land which never materialized; the sale of cattle is also not substantiated by the assessee. 6.2.2 During the course of appellate proceedings the AO was asked vide order sheet entry dated 28.02.2018 to send the report after giving an opportunity to the assessee to prove the cash deposits claimed to have been received by way of 'bayana', record statements of the proposed buyers, exam....