2023 (8) TMI 451

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....y stated the facts coming out of the records are; 2.1 The assessee an individual engaged in the business of development of residential complexes, had e-filed his return of income ['ITR'] declaring total income of Rs. 30,81,380/- on 21/10/2016. The case of the assessee vide notice dt. 03/07/2017 was selected for limited scrutiny under CASS regime to verify two bullet issues viz; (i) Genuineness of sundry creditors and (ii) Deduction under capital gains. After according reasonable opportunity of being heard and considering the submission of the assessee, the Ld. Deputy Commissioner of Income Tax, Circle-12, Pune ['AO'] vide DIN & Order ITBA/AST/S/143(3)2018-19/1014657865(1) dt. 29/12/2018 assessed the total income of the assessee at Rs. 2,....

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....d CIT-(A) being bad in law, null and void arbitrary, baseless, devoid of merits the same may please be vacated. 2. In the facts and circumstances of the case and in law, the learned CIT-(A) has failed to appreciate that cash was withdrawn from personal savings account was lying with the appellant and it was deposited in the very same personal savings account. At the outset the appellant assessee submits that he has withdrawn Rs. 30,00,000/- from SB account on 08.10.2014. This amount was lying with appellant and same was deposited on 29.04.2015 in the very same bank account. Thus, there is direct nexus of withdrawal of cash and deposit of cash in the very same bank account. Further the learned CIT-(A) established the availability of....

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....ht of settled legal position forewarned to either parties. 4. First thing first, in view of the Hon'ble Apex Court judgements in 'National Thermal Power Company Ltd. Vs CIT' reported in 229 ITR 383 and 'Jute Corporation of India Ltd. Vs CIT' reported in 187 ITR 688 there is a now unanimity that purely a legal ground can be raised at any point of time including during the second appeal before the Tribunal either as main ground or as an additional ground only if the relevant facts are already on record. In the extant appeal, the additional legal ground raised by the appellant goes to challenge the very jurisdiction of the assessment without triggering any fresh enquiry or investigation into the facts of the case, therefore deserves to be a....

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....e proceeding to enlarge the scope to later type complete scrutiny, the AO is mandated to first form reasonable view on possibility of potential under assessment if remained unexpended and then seek prior approval of concerned authority. In the event of failure to adhere to these two dictates, the exercise in contravention thereof runs extra-territorial and thus renders void. Therefore it is imperative to quote the mandate set in para 2 of the CBDT circular (supra) as; "2. In order to ensure that maximum objectivity is maintained in converting a case falling under "Limited Scrutiny" into a "Complete Scrutiny" case, the matter has been further examined and in partial modification to Para 3(d) of the earlier order dated 29.12.2015, Bo....