TaxTMI 
TaxTMI 
2023 (8) TMI 378
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.... the case of Abhimanyu Chaturvedi are reproduced below ; 1. That the Impugned Order dated 10.08.2022 passed by the Ld. CIT (A) is bad in law and fact. 2. That the Impugned Order has incorrectly upheld the Assessment Order dated 09.08.2021 which is void ab initio. 3. That the Impugned Order has failed to appreciate the fact that the Assessment Order dated 09.08.2021 is bad in law and fact. 4. That the Assessment Proceedings under Section 153A and 153D of the Income Tax Act ('the Act') have been incorrectly initiated against the Appellant and the same are without any basis in law and fact. 5. That the Impugned Assessment proceedings are in violation of principles of natural justice and the Ld. AO has acted in a premeditated manner. 6. That the Ld. CIT (A) has failed to appreciate the fact that all additions made in the case of the Appellant are without any basis as the statement/s on basis which such additions were made were withdrawn. 7. That the addition of Rs. 2,32,86,521 under Section 69A of the Act has been erroneously upheld by the Ld. CIT (A). 8. That the Ld. CIT (A) has erroneously upheld the addition of ....
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....nitially offered to tax was declared in the returns. It is the case of appellants that by their replies they had specifically submitted that shares of PMC Fincorp Ltd. were purchased vide cheques issued by the Assessees. The said shares were duly credited in the D-Mat Account of the Assessees. 6. It is claimed that no incriminating material whatsoever was found at the premises of the Assessees. It is further claimed that the Assessment proceedings against the Assessees, as per the provisions of Section 153A of the Act were to become time barred on 30.09.2021. However, as the Assessees did not receive the assessment order till 30.9.2021, so the assessee sought a copy of the order vide letter dated 13.10.2021. It is submitted that they were supplied with a copy of the Assessment Order which was dated 09.08.202. It was running into 250 pages and did not bear any DIN number and the said orders were received by the assessees only 16.10.2021. It is also pointed out that different orders were put on the ITBA Portal which were of lesses pages and a DIN purportedly generated on 17.09.2021 and 18.09.2021 was communicated separately. 6.1 Ld AR has also given a table showing the details ....
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....u Chaturvedi (ITA No. 2486/Del/2022 for A.Y. 2012-14. Vide the said letter, the CIT(DR) has intimated that the Hon'ble members of the Bench have directed to get the comments of the assessing Officer on whether the Assessment Order in all these cases have been issued manually or through ITBA. 3. In the case of Sh. Abhimanyu Chaturvedi, assessment order u/s 153A of Income Tax Act, 1961 for A.Y. 2013-14 was passed manually on 09.08.2021. Further, the assessment order for A.Y. 2013-14 passed manually earlier on 09.08.2021 was uploaded on ITBA on 17.09.2021 and DIN No. ITBA/AST/M/153A/2021-22/1035679086(1) was generated for the Assessment order for A.Y. 2013-14 on 17.09.2021 through ITBA. Whenever manually passed assessment order is uploaded on ITBA (Income Tax Business Application) through manual to system tab, a DIN (Document Identification Number) is generated for that particular Assessment Order. This generated DIN is also communicated to assessee. In this case, after generation of DIN, the assessee was sent intimation letter through ITBA for order u/s 153A of the I.T.Act, 1961 on 17.09.2021. It is further submitted that the CIT(A) has already adjudicated the issue of DIN i....
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....was passed then in the light of circular dated 14.08.2019, unless the case was in the exceptions created by the Circular and without there being a prior approval of the Chief Commissioner / Director General of Income Tax, the assessment order could not have been issued without DIN. It was submitted that generation of the DIN subsequently does not validate the deficiency. 8.2 It was further submitted that the assessment orders were received by the assessee only after they had made a communication with the ld. AO and when the assessment order were dispatched on 14.10.2021, the assessment stood barred as same had to be concluded by 30.09.2021. It pointed out that appellants have filed their respective affidavits deposing that they had not received any assessment order prior to their request letter dated 13.10.2021. It was submitted that Ld. AO while submitting his report to the Tribunal has not submitted any evidence to show that the emails were sent from ITBA Portal and the affidavits of assessee in that regard are in a paper book. Reliance was placed the judgment of Hon'ble Supreme Court of India in State of Andhra Pradesh Vs. M. Ramakishitah & co. (1994) 93 STC 406 (SC,) CIT vs.....
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....reme Court in [2018] 259 taxmann.com 88 (SC) that assessment on the basis of statements which were retracted is not justified. Reliance is placed on the judgment of Hon'ble Supreme Court of India in the case of Abhisar Buildware Pvt. Ltd. in Civil Appeal No. 6580 of 2021, dated 24.4.2023 submitting that no incriminating material was found during the search and creating a liability on the basis of statement alone is not sustainable. 10. On the other hand, Ld. DR has supported the findings of Ld. Tax Authorities below. The stress of argument of Ld. DR was on the fact that the very procedure of generating the DIN and communicating the same is such that as the order is uploaded the DIN is generated and communicated to the assesses. It was submitted that since a manual assessment order was prepared outside ITBA portal the assessment order is dated 09.08.2021 and thereafter it was uploaded before the date of barring of assessment and thereafter Ld. DR has heavily relied the judgement of Jharkhand High Court in WP(P) no. 1901 of 2022 dated 21.02.2023 title Prakash Lal Khandelwal vs. CIT -Ranchi to contend that Hon'ble High Court has held that generation of DIN and its communication sub....
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....xceptional circumstances such as, - (i) when there are technical difficulties in generating/allotting/quoting the DIN and issuance or communication electronically; or (ii) when communication regarding enquiry, verification etc. is required to be issued by an income-tax authority, who is outside the office, for discharging his official duties; or (iii) when due to delay in PAN migration, PAN is lying with non-jurisdictional Assessing Officer; or (iv) when PAN of assessee is not avail able and where a proceeding under the Act (other than verification under section 131 or section 133 of the Act) is sought to be initiated; or (v) When the functionality to issue communication is not available in the system, the communication may be issued manually but only after recording reasons in writing in the file and with prior written approval of the Chief Commissioner / Director General of income tax. In cases where manual communication is required to be issued due to delay in PAN migration the proposal seeking approval for issuance of manual communication shall include the reason for delay in PAN migration. The communication issued under aforesaid circumstanc....
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....to uploading the document in ITBA. 2. ITBA provides the functionality to capture and upload the letters, notices and orders issued manually and served on the assessee by users due to any exceptional reasons like technical issue in system etc. DIN was generated for every such document uploaded manually. However, there was no facility to quote the system generated DIN in the physical copy of documents. 3. Therefore, whenever user uploads a document which was issued outside ITBA system, DIN will be generated prior to uploading of such manual letter or notice or order in ITBA. User may use the same for reference and quoting as Doc. No. in physical copy. 4. Intimation letter will continue to be generated in ITBA. The same document will also be shared with e-Filing portal through e- Proceedings interface for authentication purpose. Assessee can verify the authenticity of the Letter or Notice or Order issued by Income Tax Authorities (ITA) in e-Filing portal. Such intimation along with Letter/Notice/Orders also made available in View/Download Letter/Notice/Orders screen if users wish to dispatch the same through post. Steps to be followed for DIN genera....
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..../3 (iii)/3 (iv)/3 (v) of the CBDT Circular No ... dated .... (strike off those which are not applicable) and with the approval of the Chief Commissioner / Director General of Income Tax vide number .... dated .. .. " 15.2 To make it crystal clear here the words 'Communication' is not used to define merely the mode of transmission of the information but the circular No 19 of 2019 makes it clear by defining it in following words "However, it has been brought to the notice of the Central Boa rd of Direct Taxes (the Board) that there have been some instances in which the notice, order, summons, letter and any correspondence (hereinafter referred to as "communication"). So the assessment order itself is a communication and all compliances expected have to be specific to the assessment order. 15.3 Coming back to the assessment orders, in fact as para no. 1 to 3.1 of the assessment order dated 09.08.2021 are considered they mention that notice u/s 153A of the Act was issued through ITBA portal. Subsequent notice u/s 143(2) of the Act was also issued through ITBA Portal. Thus, the notices for the purpose of assessment were issued through ITBA Portal and if thereafter the assessment w....
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....s it was uploaded of ITBA portal on 01.04.2022 and the DIN was generated by delay of just one day. However, the material question that DIN is required to be mandatorily quoted on the assessment order was not examined specifically has any finding given that in the absence of order not bearing DIN, the Circular will be not binding. 18.2 At the same time the issue has been directly examined by Co-ordinate Bench in ITA no. 1542/Del/2022 order dated 19.09.2022 in the case of M/s. Brandix Mauritius Holdings Ltd. vs. DCIT in para 9 to 11 as follows :- "9. A perusal of the aforementioned Circular clearly shows that the CBDT has considered the exceptional circumstances as mentioned in Para 3 of the Circular and therefore, in our considered opinion, only those circumstances which have been mentioned therein would be considered for non-mentioning of DIN. 10. In Para 3 itself, the Board has made it very clear that in cases where communication is issued manually, it may be done only after obtaining necessary approval of the relevant authorities and communication so issued must indicate the exceptional circumstances provided in the Circular itself. It has been made very clea....
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....e is neither any scope for debate not is there any leeway for an alternate view." 18.5 The view has been followed by the Benches at Mumbai in ITA no. 3122/Mum/2022 Sh. Abhishek Doshi vs. ACIT order dated 31.05.2023, Delhi in ITA no. 1898/Del/2022 Pratap Singh Yadav vs. DCIT order dated 30.05.2023 and Bangalore Bench in order dated 31.10.2022 ITA No. 403 to 405/Bang/2022 title Dilip Kothari vs. PCIT and ITA No. 239/Bang/2021 title Intrado EC India Pvt. Ltd. vs. DCIT order dated 09.11.2022 and Kolkata Bench in judgment ITA no. 432/Kol/2020 title Sunita Agarwal vs. ITO order dated 22.11.2022 and ITA no. 106/Kol/2021 Mahesh Kumar Sureka vs. PCIT order dated 29.11.2022. Thus, the judgment cited by Ld. DR does not come to the rescue of Revenue. Thus, first issue as casted is decided in favour of the assessee. 19. Coming to the second issue it comes up that there is nothing before the Bench from the side of Revenue indicating that the order uploaded on ITBA was the complete order and communicated through ITBA rather Ld. Counsel was able to demonstrate that as of now also there are 4 or 7 pages orders on the ITBA. There appears to be an error which may be attributed to system glitch ....