TaxTMI 
TaxTMI 
2023 (9) TMI 423
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.... the assessee never received hard copy of first appellate order nor on the email addresses given in the Form no. 35 wherein email address of assessee was stated at [email protected] and email address for communication was given [email protected]. The ld. AR submitted that on being two email addresses the assessee never received soft copy of the order. On 03.09.2022 when the AR of assessee was updating his office records then he found that the first appellate order has not been received on the emails mentioned in the form no. 35 and on being asked the assessee also informed that the company has also not received hard copy of the first appellate order. The ld. counsel submitted that on the very same date after putting several efforts it was noticed that the order is available on the email as [email protected] which was never given to the Department as email address for communication. 3. Placing reliance on the various judgement of Hon'ble Supreme Court in the case of N. Balakrishnan vs. M Krishnamurthy (1998) 70 Hon'ble Supreme Court 123 and order of ITAT Amritsar in ITA No. 57/Asr/2021 dated 01.03.2023 in the case of M. K Hotels & Resorts Ltd. vs. ACIT the ld....
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....to shut the door against him. Further it is a settled law that in matters of condonation of delay, a highly pedantic approach should be eschewed and a justice oriented approach should be adopted and a party should not be made to suffer on account of technicalities. Before us, no material has been placed by Revenue to demonstrate that the delay in filing the appeal before CIT (A) by the assessee was due to some malafide intention on its part. In view of the aforesaid facts and in view of the well settled principle of natural justice that sufficient opportunity of hearing should be afforded to parties and no party should be condomned unheard, we are of the view that the delay in filing the appeal before CIT (A) needs to be condoned." 7. In the present case the report of the Assessing Officer relied by the ld. Senior DR shows that the physical copy of orders was returned back by the postal authorities and the soft copy was send to the email address which was not provided by the assessee to the Department and the same was also not mentioned as email address for communication in Form No. 35. As per assessee the orders came to his notice on 03.09.2022 and he filed appeals on 14.09.2022....
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.... above submissions and perusal of the record and additional grounds I find that these are legal grounds based on the provisions of the Act and prepositions rendered by Hon'ble Supreme Court, Hon'ble jurisdictional High Court of Delhi and coordinate benches of the Tribunal. Therefore in the totality of the facts and circumstances additional grounds are admitted for hearing. Applications are allowed. Additional ground no. 1 10. Apropos this ground the ld. AR reiterated written submissions which are as follows:- Contention On Merits Of Ground The proceedings us. 147/148 have been initiated on the basis of the information and material collected in search on S K Jain Group Hence it is a case which has been initiated on the basis of seized material in search u/s. 132 on a 3rd party On reassessment on the basis of incriminating material found in search of a 3rd party, the provisions of Sec. 153C are applicable which excludes the application of Sec. 147/148 The scope of Sec. 147 / 148 vis-a-vis 153C are different Sec. 147 is applicable where there is any information taken out from the seized material in search of a 3rd party while, Sec. 153C is to be invoked where the reas....
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....der Kumar Jain Group of cases and after intensive and extensive inquiry of documents seized during the course of search it has been noticed that said group is involved in providing accommodation entries to the persons listed in the report. The total facts mentioned in the reasons clearly reveals that the Assessing Officer took action u/s. 147/148 of the Act on the report of Investigation Wing and documents found and seized during the course of search and seizure operation on Surender Kumar Jain Group. 13. In the recent judgment in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. (supra) their Lordship held that in case during the search no incriminating material is found, in case of completed/unabated assessment, the only remedy available to the Revenue would be to initiate the reassessment proceedings under sections 147/48 of the Act, subject to fulfillment of the conditions mentioned in sections 147 / 148. At the cost of repetition I my point out that their Lordship in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. (supra) has drawn a clear distinction between two types of cases first where no incriminating material has been found and seized then the only remedy available to t....
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.... treated as addl. ground but cover in the originally taken ground Approval u/s.151 given for reopening " u/s.147(b) of the l.T. Act" Sec. 147 (b) not in statute w.e.f. 01.04.89 Hence, approval us.151 for reopening is under non-existent Sec. Such approval is not maintainable in law Further, this shows approval without application of mind making approval unsustainable in law. CASE LAWS Smt. Kalpana Shantilal Hariya Vs. ACIT W.P. No. 3063 / 2017 (Bom. HC) It is a direct authority on this issue. In this case approval u/s. 151 was given by proposing reopening U/s. 147(b). This Sec. 147(b) was not in statute. A.O. issued letter to assessee mentioning invertent error and to treated as Sec. 147. The Hon' ble Court held approval given on the basis of Sec. 147 is a case of non application of mind and mechanical approval. VRC Township Pvt. Ltd. Vs. ITO ITA. No. 1503/Del./2017 Dtd. 14.10.20 (Issue discussed in Para-6.1, findings in Para-6.4 of decision) In this case the proposal of reopening was us. 147(b) which was approved us. 151 as it is. Following the above mentioned Bom. HC decision, the reopening on the basis of such approval has been held invalid. Mahe....