TaxTMI 
TaxTMI 
2024 (3) TMI 572
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.... law and on fact to upheld AO's addition of Rs. 59,56,500/- u/s 68 of the Act ignoring the fact that the said amount is a part of appellant's turnover on which profit is already taxed by the AO consequently it amounts to double taxation. 3. Ld. CIT[A], NFAC, Delhi has erred in law and on facts in upholding AO's addition of Rs. 59,56,500/- on irrelevant ground that Essar Oil Ltd. is only a limited company and not a public sector oil marketing company, so, not eligible to collect OHD during demonetization period by ignoring and overlooking the fact that the appellant had sold petrol and diesel to the customers on retail basis. Amount of cash sale is deposited in bank and in turn payment was made to Essar Oil Ltd. Ld. CIT[A] has further erred in holding that the appellant has accepted OHD during demonetization period from his retail customers. 4. Ld. CIT[A], NFAC, Delhi has erred in law and on facts in upholding AO's action to charge Income Tax at maximum rate @ 60% u/s 115BBE of the Act overlooking the facts that the sum of Rs. 59,56,500/- is a part of total turnover amounting to business receipts and the AO has also taxed net profit on the said sum of Rs. 59,56,500....
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....ng companies. 4. Therefore, the assessee was requested to furnish details of SBN in the said opening cash-in-hand and to explain as to why the cash deposit in SBN over and above the SBN available in cash-in-hand, as mentioned above, should not be added to the total income as unexplained income for the year under consideration. In this respect, a show cause notice was issued to the assessee on 22.12.2019, the relevant part of the said show cause notice is reproduced on page no.3 to 4 of the assessment order. 5. In response to the said show cause notice, the assessee made submission, before the Assessing Officer, which is reproduced below: "The total sales in respect of trading relating to petrol, diesel and other oils for the period 9.11.2016 to 30.12.2016 is Rs. 2,10,45,271.36 reflecting only cash sales and Rs. 24,70,507.34 reflecting closing OHD on 08.11.2016. As per the details mentioned above, we had some closing cash-in-hand of OHDN on 08.11.2016 as we as retail sale of petrol and diesel and the same is deposited in Bank of Baroda Rs. 13,00,500/- and in State Bank of India of Rs. 71,06,000/- as per above notice, we have deposited old not of Rs. 500/- & R....
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....the assessee was intimated during assessment proceedings. Notwithstanding of this fact, the Assessing Officer framed the assessment on dead person. Therefore, assessment order itself is bad-in-law and should be quashed. 10. On merit, ld Counsel submitted that out of closing cash-in-hand of OHDN on 08.11.2016 as retail sale of petrol and diesel were the source of the cash deposit in Bank of Baroda at Rs. 13,00,500/- and in State Bank of India of Rs. 71,06,000/-. The ld Counsel stated that this amount was deposited out of retail sale of petrol and diesel, hence no addition should be made in the hands of the assessee. 11. On the other hand, Ld. Sr-DR for the Revenue, argued that no doubt the legal representative of the assessee, had informed to the Assessing Officer, during assessment stage, that the assessee had died. However, such information was provided to the Assessing Officer by way of letter only but assessee did not take effort to change PAN and Income Tax data base. Therefore, there was no mistake on the part of the Assessing Officer to frame the assessment on the dead person. 12. On merit, Ld Sr-DR for the Revenue submitted that during demonetization period, the sal....
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....sdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequent would have no legs to stand. If the notice goes, so does the order of assessment it is trite law that if the Assessing Office had no jurisdiction to initiate assessment proceedings, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. xxxxx THE SINE QUA NON FOR ACCOUNTING JURISDICTION TO REOPEN AN ASSESSMENT IS THAT NOTICE UNDER SECTION 148 SHOULD BE ISSUED TO A CORRRECT PERSON AND NOT TO A DEAD PERSON. CONSEQUENTLY, THE JURISDICTIONAL REQWUIREMENT UNDER SECTION 148 OF THE ACT, 1961 OF SERVICE OF NOTICE WAS NOT FULFILLED IN TEHE PRESENT INSTANCE. 26. In the opinion of this Court the issuance of a notice under Section 148 of the Act is the foundation for reopening of an assessment. Consequently, the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice bein....
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.... (6) TMI 760 - MADRAS HIGH COURT] 35. This Court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, Section 292B of the Act, 1961 does not apply to the present case. IN RAJINDER KUMAR SEHGAL (SUPRA) A COORDINATE BENCH OF THIS COURT HAS HELD THAT SECTION 22BB FO THE ACT, 1961 IS APLICABLE TO AN ASSESSEANDNOT TO A LEGAL REPRESENTATIVE. xxxxx 38. This Court is also of the view that Section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present case one of the legal heirs of the deceased assessee, i.e., the petitioner, had neither cooperated in the assessment proceedings nor filed return or waived the requirement of Section 148 of the Act, 1961 or submitted to jurisdiction of the Assessing Officer. She had merely uploaded the death certificate of the deceased assessee. xxxxx 40. Consequently, the applicability of Section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives." 9. The above judgment was followed by....