TaxTMI 
TaxTMI 
2023 (3) TMI 1403
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....he Assessment order passed by the learned Assessing officer under section 144 read with section 147 of the Act and served on the appellant by an e-mail dated 06.01.2020 is beyond the limit prescribed under section 153 of the Act and hence it is barred by limitation on the facts and circumstances of the case. 3. The learned Commissioner of Income-tax (Appeals) failed to adjudicate the ground of the appellant that the assessment order served on the appellant through e-mail dated 06.01.2020 did not bear a Document Identification Number (DIN) and therefore is invalid as per the guidelines issued by the Central Board of Direct Taxes on the facts and circumstances of the case 4. The learned Commissioner of Income-tax (Appeals) is not justified in law in confirming the additions made by the learned Assessing officer in respect of unexplained investments under section 69 of the Act to the extent of Rs. 31,10,000/- when the appellant has furnished complete details of the source of the cash which is deposited into his bank account on the facts and circumstances of the case. 5. The learned Commissioner of Income-tax (Appeals) failed to appreciate all the contents of....
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.... in the bank account to the extent of Rs. 29,50,000/- on the facts and circumstances of the case. 5. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the provisions of section 69 of the Act is not applicable and consequently invoking the provision of section 115BBE of the Act is invalid in law on the facts and circumstances of the case. 6. The learned Commissioner of Income-tax (Appeals) failed to adjudicate all the grounds of appeal filed by the appellant on the facts and circumstances of the case. 7. The Appellant denies himself liable to be charged interest under Section 234A, 234B and 234C of the Act on the facts and circumstance of the case. 8. The appellant craves for leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal as may be necessary at the time of hearing. 9. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity. 2. Brief facts of the case are as under:- The assessee is a non resident indi....
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....12.2019. The Ld.AR submitted that, what is to be considered is when the assessment order is issued so as to beyond the control of the authority concerned. 4.2. Admittedly, the limitation expires on 31.12.2019 and impugned order is dated 30.12.2019. The Ld.DR submitted that, the assessee is trying to argue on presumptions, without any cogent material to establish the dispatch of the order. Placing reliance on the generation of DIN which is filed by assessee itself before us today, the ld.DR submitted that, a separate DIN number has been generated in the present assessment order which reveals that the assessment order and the computation sheet has been passed on 30.12.2019. He, thus vehemently opposed the argument advanced by the ld.AR on this issue. 4.3. We have perused the submissions advanced by both the sides in light of records placed before us. 4.4. We find force in the submissions of the Ld.DR. In any event, there is nothing brought in record by the assessee to establish that the assessment order has been "made" after 31.12.2019 thereby making a time bar. We, therefore reject the first legal plea raised by assessee in Ground No.2 5. The second legal plea raised by ....
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....ral Board 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") were found to have been issued manually, without maintaining a proper audit trail of such communication. 2. In order to prevent such instances and to maintain proper audit trail of all communication, the Board in exercise of power under section 119 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), has decided that no communication shall be issued by any income-tax authority relating to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the 1st day of October, 2019 unless a computer-generated Document Identification Number (DIN) has been allotted and is duly quoted in the body of such communication. 3. In exceptional circumstances such as, - (i) when there are technical difficulties in generating / allotting / quoting the DIN and issuance of communication electronically; or (ii) when....
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....hin seven days from the date of its issuance. 7. Further, in all pending assessment proceedings, where notices were issued manually, prior to issuance of this Circular, the Income-tax authorities shall identify such cases and shall upload the notices in these cases on the Systems by 31th October, 2019." Sd/ (Sarita Kumari) Director (ITA.II)CBDT." 5.4. On a bare perusal of the above circular, it is clear that, no communication shall be issued by the revenue authorities without allotting a DIN number that is necessary to be quoted in any correspondence issued by the revenue authorities. Except under exceptional circumstances as referred by the circular in para '3', the procedure has to be strictly followed. As per para '3' in, the event the DIN number is not mentioned in any of the communication issued by the assessing authorities, should be with the written approval of Chief Commissioner/Director General of Income Tax and such details must be mentioned in the manual communication by the assessing authorities to the assessee. Para '4' of the circular clearly states that, any communication issued manually which is not in conformity with para '2' and pa....
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..... 6.2. Aggrieved by the order of the ld.AO, the assessee preferred appeal before the Ld.CIT(A). The Ld.CIT(A) partly allowed the claim of the assessee after considering various documents filed by assessee. Aggrieved by the order of the ld.CIT(A), assessee is in appeal before the Tribunal. 6.3. The assessee filed application for admission of additional grounds which reads as under:- 1. The learned Assessing officer, Income Tax Officer, WardInternational Taxation 1(1), BLR, being the jurisdictional Assessing officer, has failed to issue a notice under section 143(2) of the Act, and consequently the entire assessment proceedings and the assessment order dated 30.12.2019 passed under section 143(3) of the Act is without jurisdiction and ought to be quashed on the facts and circumstances of the case. 2. The appellant craves leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal as may be necessary at the time of hearing. 3. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial....
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....ed through e-assessment portal on 15.07.2019 by ITOWard- International Taxation-1(1), Bangalore calling for details. 7.2. The Ld.AR submitted that ITO-Ward-International Taxation never issued a notice u/s. 143(2) of the Act to the assessee, and therefore did not assume jurisdiction to pass the assessment order. Referring to AY 2014-15, the ld.AR submitted that, it was always International Taxation-1(1) who had the jurisdiction over the assesee and as the previous notices u/s. 143(2) of the Act that issued by non jurisdictional AO for year under consideration and that there was a transfer order passed, transferring the case to International Taxation, Ward-1(1), it was incumbent upon the Ld.AO of the International Taxation Ward-1(1) issue notice u/s. 143(2) of the Act. 7.3. The ld.AR submitted that the notices issued to the assessee for AY 2017-18 u/s. 143(2) of the Act was by non jurisdictional AO, and therefore, unless International Taxation Ward-1(1) issues fresh notice 143(2), assumption of jurisdiction cannot be conferred and entire assessment proceedings without issuance of notice u/s. 143(2) becomes void ab initio. He placed reliance on the following decision in suppo....
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.... opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Principal ITA Nos.1037 & 1038/Bang/2019 Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,-- (a) where the Principal Directors General or Directors General or Principal Chief Commissioners or] Chief Commissioners or Principal Commissioners or] Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner from whose jurisdiction the case....
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....e to the rescue of revenue. We find the facts of the present case are identical to the case already decided by the decision of Hon'ble Kolkata Tribunal in case of Rungta Irrigation Ltd. (supra). The issue in the case before the ITAT Kolkata Bench in the case of M/S.Rungta Irrigation Ltd. Vs. ACIT in ITA No.1224/Kol/2019 order dated 6.9.2019 was whether, non-issue of notice u/s.143(2) by the AO who passed the assessment order will render the order of assessment void or was it a curable defect. It was the plea of the Assessee that as held by the Hon'ble Supreme Court in case of Hotel Blue Moon reported in 321 ITR 362, non-issue of notice u/s.143(2) by the AO who passed the assessment order renders the order of assessment proceedings a nullity. According to the revenue as per section 127 of the Act, which deals with transfer of jurisdiction of a case specifically provides in sub-section (4) of section 127 that there is no necessity to re-issue of any statutory notices already issued by the AO from whom the case is transferred. This Tribunal has consistently held in plethora of cases that, on transferring the jurisdiction of the assessee's case by an AO who had issued 143....
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....On the other hand, reliance was placed by the Appellant on the provisions of Section 292BB of the Act to submit that the Respondent having participated in the proceedings, the defect, if any, stood completely cured. 5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue Moon's case (supra) the first question was whether notice under Section 143(2) would be mandatory for the purpose of making the assessment under Section 143(3) of the Act. It was observed:- "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the following two questions of law were raised for consideration and decision of the High Court, they were: "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income Tax Act, 1961 within the prescribed time-limit for the purpose of making the assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And (2) Whether, on t....
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....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." 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections 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. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on re....
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....me Court in a recent decision in case of CIT vs. S.K.Industries reported in (2022) 141 Taxmann.com 569 has taken identical view that where an Assessing Officer, passed an assessment order under section 143(3) without issuing notice under section 143(2) and only in pursuance with notice issued by another assessing officer under section 143(2), who had no jurisdiction over assessee at relevant time, such assessment order was liable to be set aside. 7.6. Admittedly, there was no notice issued by the ITO Ward 1(1) International taxation, had jurisdiction over the assessee and who completed the assessment. We have carefully considered the rival submissions. Section 127 of the Act reads as follows: "Power to transfer cases. 127. (1) The Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any....
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....anation.--In section 120 and this section, the word "case", in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year." 7.7. It can be seen from the provisions of Sec.127(4) of the Act that the necessity of re-issuing notice under section 143(2), by the transferee AO is not necessary, but on the date on which the notice under section 143(2) is issued by the transferor AO, he must have held a valid jurisdiction over the assessee. In the present facts of the case, case the notice u/s.143(2) of the Act was issued by the transferor AO on 28/09/2018, did not have jurisdiction over the assessee. Therefore the provisions of Sec.127(4) of the Act cannot come to the rescue of revenue. 7.8. We find the Hon'ble Supreme Court in case of Hotel Blue Moon reported in 321 ITR 362, non-issue of notice u/s.143(2) by the AO who passed the assessm....
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....ions made under Section 68 of the Income Tax Act, 1961 should be deleted or set aside?" 4. In said appeal arising from the decision of the Income Tax Appellate Tribunal ('the Tribunal', for short), the issue that arose before the High Court was the effect of absence of notice under Section 143(2) of the Income Tax Act, 1961 ('the Act', for short). The Respondent-Assessee relied upon the decision of this Court in Asstt. CIT v. Hotel Blue Moon [2010] 188 Taxman 113/321 ITR 362 (SC). On the other hand, reliance was placed by the Appellant on the provisions of Section 292BB of the Act to submit that the Respondent having participated in the proceedings, the defect, if any, stood completely cured. 5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue Moon's case (supra) the first question was whether notice under Section 143(2) would be mandatory for the purpose of making the assessment under Section 143(3) of the Act. It was observed:- "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregular....
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....me into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to the following effect:- "292BB. Notice deemed to be valid in certain circumstances.- Where an assessee has appeared in any proceeding or cooperated 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." 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the noti....