TaxTMI 
TaxTMI 
2023 (11) TMI 734
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....oncerning AY 2009-10. 2. The grounds of appeal raised by the assessee read as under: "1. On the facts and in the circumstances of the case and in law, Ld. C.I.T. (A) is upholding the re-assessment proceeding. The validity of re-assessment proceeding is incorrect and not in accordance with law. Re-assessment proceeding initiated after a period of four years from the end of the relevant assessment year where the original assessment was completed under Section 143(3) is barred by limitation and is void. Assessing officer has not applied his mind in recording satisfaction on note for re-opening the assessment. It is further submitted that non-application of mind by the superior authorities while g....
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....d the action of the Assessing Officer and CIT(A) on the point of jurisdiction as well as on merits. 6. As noted above, the assessee has inter alia challenged the jurisdiction of the Assessing Officer assumed under Section 147 r.w. Section 148 r.w. Section 151 of the Act. Since the challenge to the legality of reopening involves jurisdiction which is fundamental and goes to the root of the whole controversy, it will be appropriate to adjudicate this aspect of the appeal first. 7. The reasons recorded under Section 148(2) and approval thereon by the Pr.CIT under Section 151 of the Act being germane to the adjudication of jurisdictional issue, are reproduced herein for easy reference: PERFORMA FOR RECORDING THE REASONS FOR INITI....
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.... of section 150 (2) would not stand in the way of initiating proceeding under Section 147. N. A. 11. Reasons for the belief that income has escaped assessment. An information via e-mail was received from ADIT (Inv.) Unit-1 (3), Ahmedabad vide letter No. ADIT (Inv) 1 (3)/AHD/CCM/ Dissemination/ e-mail/ 15-16 dated 17.03.2016 in respect of Client Code Modification (CCM). Dissemination of beneficiary clients who have taken contrived losses and shifted out profits during the F. Y. 2008-09 to 2011-12. The Ahmedabad Investigation Directorate, as an institutional response to orchestrated misuse for client code modification for tax evasion, carried out coordinated limited purpose surveys us 133 A of the Income Tax Act, 1961 at the premi....
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....tisfied on the reasons recorded by the Assessing Officer that it is a fit case for the issue of notice under Section 148 of the Income Tax Act, 1961 Yes, I am satisfied, this is a fit case for the issuance of Notice u/s. 148 of the Income Tax Act, 1961. Pr. Commissioner of Income Tax Delhi- 14, New Delhi 8. With reference to the reasons so recorded and approval granted thereon by the Pr.CIT under Section 151 of the Act, the ld. counsel for the assessee contends that; (i) the assessment in the instant case was originally completed under Section 143(3) of the Act on 20.12.2016 and all the material facts were fully and truly disclosed as necessary for the assessment and consequently the jurisdiction assumed under Section 147 ....
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....d 'reason to believe' towards escapement of chargeable income as contemplated in Section 147 of the Act. Consequently, the condition of main provisions of erstwhile Section 147 of the Act is also not fulfilled. (iii) The Assessing Officer as per row no.8 of the approval memo (reproduced above) has proceeded on the assumption that the assessment proposed to be made for the first time in sharp contradiction to the fact on record that assessment was already carried out earlier vide order dated 24.08.2011 and hence the reasons recorded suffers from factual error of foundational nature. (iv) the assessment proceedings have been initiated on the basis of incomplete and vague information received from ADIT (Inv.) Ahmedabad. The A....
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....ction 147 would not apply. A reference to the judgment of the Hon'ble Delhi High Court in the case of Best Cybercity (India) Pvt. Ltd. vs. ITO, 414 ITR 385 (Del) is made. 9. We find palpable merit in the plea of the assessee that the action of the Assessing Officer to assume jurisdiction is without sanction of law. A perusal of the case record would show that a completed assessment has been reopened on the grounds of purported misuse of National Stock Exchange Platform to obtain contrived loss and siphon out profits earned having regard to the information disseminated by ADIT (Inv.) Ahmedabad. The Assessing Officer has neither incorporated transaction-wise detail in the reasons recorded alleging fictitious losses nor it has been recorded....