TaxTMI 
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2024 (8) TMI 353
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....ction 144/147 r.w.s. 144C is completely without jurisdiction in as much as the ld. Assessing Officer, Circle (INTL TAX), Jaipur not holding any valid jurisdiction and therefore, the impugned notice issued u/s 148 dt.30.03.2022 and the consequent, impugned assessment order dt.29.12.2023 complete nullity being without jurisdiction and deserves to be quashed. 3.1. The Id. Dispute Resolution Panel-1, New Delhi (DRP-1) has not providing any opportunity despite mandatory procedure statutorily prescribed u/s 144C(5) of the Act. Thus, the impugned order of DRP suffers from the violation of natural justice and being nullity, the same couldn't have been taken cognizance nor could have been followed by the assessing officer. 3.2. The impugned assessment order dt.29.12.2023 therefore, is without jurisdiction and having been passed in absence of a valid draft assessment order passed by the DRP and therefore, deserves to be quashed. 4. The Id. AO erred in law as well as on the facts of the case in framing the assessment u / s 144 r.w.s 147 of the Act without affording adequate and reasonable opportunity and even without complying with the mandatory statutory requirement of law. The imp....
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....ess manner only as against done manually and hence, the same deserves to be quashed." "10. The ld. AO further erred in law as well as on the facts of the case in imposing tax, surcharge, cess etc. as per provision of S.115BBE of the Act. The invoking of S.115BBE is contrary to the provisions of law, on facts and without jurisdiction. The appellant totally denies its liability. The tax liability so created, kindly be deleted in full." 3. Succinctly, the fact as culled out from the record is that the assessee did not file his ITR for the A.Y. 2018-19. There was information available with the department that the assessee had sold an immovable property for a sale consideration of Rs. 69,90,000/-, as the return of income was not filed the transaction remained unverified. Accordingly, after recording the reasons for escapement assessment, notice u/s 148 of the Act was issued to the assessee on 30.03.2022 with prior approval taken from the PCIT, Udaipur. The assessee did not file his ITR for the year under consideration even after issue of notice u/s. 148 of the Act. 3.1 During the assessment proceedings, statutory notices were issued to the assessee requiring him to furnish relevan....
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....d sent the notice as available with her. The AO is further constrained by the fact that assessee has not filed its return of income despite the fact that he had purchased and sold immovable property in India and some of the transactions pertains to subject assessment year. The AO naturally sent notice to that is available as per AIR information/TA9/26AS database. Therefore, the Panel doesn't find any infirmity on the above issue. 3.2 The AO has proposed an addition of Rs. 69,90,000 under section 69A of the Act as assessee didn't comply to the AO's notices. The AO's proposed addition is on account of following fact as mentioned the draft assessment order. "During the assessment proceedings, the assessee was asked regarding the source of funds used to purchase the said immovable property and doing the above-mentioned transactions vide notice u/s 142(1) dated 02.01.2023, 16.01.2023, 19.03.2023 and show cause notice dated 17.02.2023, 25.03.2023. The assessee in response did not produce any documentary evidence regarding the income generated from the above sale transactions. The assessee only stated that"...we are in the process of collecting the required date in ....
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.... "1. The assessee had purchased an immovable property i.e. AMC NO 547/15 Old, Shrinagar, Ajmer for a consideration of Rs. 7,00,000/- in the year 2008 and claimed indexation of purchase cost including other expenses at Rs. 15,22,982/-, However, he has neither mentioned alleged property details in his computation nor furnished purchase documents substantiating his claim. During the assessment proceedings, he did not comply to the statutory notices issued to hirrt. Even after providing sufficient opportunities to file reply, the assessee has not filed even a single reply rather filing objection before the AO. Further, the assessee has also claimed indexation of cost of improvement for construction made in various financial years. In support of cost of improvement the assessee has only submitted a valuation report mentioning therein year wise cost of construction. No supporting evidence of work order, contract of work, payment made related to construction work bank statement etc have been submitted by the assessee. 2. The assessee has claimed to have been sold the said property for a sale consideration of Rs. 69,90,000/- during the FY. 2017-18. The assesse has accepted this fact in ....
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.... the assessee has fulfilled the above mentioned conditions and eligible for the deduction u/s 54 of the Act. Further, the assessee has not filed the ITR for claim u/s 54 of the Act. Therefore, considering the circumstances of the case, the deduction u/s 54 cannot be allowed. On basis of the discussion made before the total income of the assessee is computed as under:- Income declared in ITR Not filed Addition on account of LTCG Rs. 69,90,000/- Total Income Rs. 69,90,000/- 5. Aggrieved from that order of the assessment which was passed after the direction of the DRP, the assessee preferred the present appeal on the grounds as stated here in above. To support the various grounds so raised by the ld. AR of the assessee, he has filed the written submissions and the same is reproduced herein below: "Brief General Facts: Notice u/s 148 dt. 30.03.2022 (PB-II/102) was sent on dt.13.04.2022. The assessee had sold an immovable property of Rs. 69,90,000/- and being a case of NRI, draft assessment order purposing certain valuation in the income returns. In response, the appellant filed detailed objections u/s 144C(1) of the IT Act, 1961 which were decided by the Dispute Resolution P....
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....to incorporate the findings of the Panel in respect of various objections suitably in the final order. The Assessing Officer shall also place a copy of the Panel Directions as Annexure to the final order". Consequently, assessment order u/s 147/144 r.w.s 144C was passed on 29.12.2023 and addition of entire amount of sale consideration of Rs.69.90 lacs was made. Hence this appeal GOA 1& 2: Action taken u/s 147/148 is completely without jurisdiction on various grounds: Facts: The Income Tax Officer ward 2(2), Ajmer initiated the proceedings u/s 148A by issuing a show cause notice u/s 148A(b) (PB 68-69) and thereafter passing impugned order u/s 148A(d) (PB 79-80) and also impugned notice u/s 148 both dt.30.03.2022 whereas, the correct and legally valid jurisdiction remained with the international charge Circle (INTL. TAX), Jaipur. Accordingly, objections were raised letters dt.27.04.2023 (PB 3-12) and again vide another letter dt.23.07.2023 (PB 71-72). The same was disposed of by the ACIT Circle (INTL. TAX), Jaipur vide order dt.25.03.2023 (PB 77-78), rejecting the same. Submission: 1. Impugned Notice u/s 148 issued without Jurisdiction: 1.1. At the outset it is submitted....
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.... not the "Jurisdictional Assessing Officer" ("JAO"). If the interpretation as contended, is accepted then the "AO" may means any AO situated anywhere in the country i.e. right from Jammu & Kashmir till Kanyakumari, may be the AO to assess the income of an assessee stationed at Ajmer, which can never be the legislative intention. 1.2.2. In fact, the term Assessing Officer has been defined u/s 2(7A) of the Act reproduced hereunder: "Assessing Officer means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director] or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub- section (2) of section 120 or any other provision of this Act, and the Additional Commissioner or] Additional Director or] Joint Commissioner or Joint Director] who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under this Act" 1.2.3. The very fact that the Assessing Officer, Circle (Intl Tax), Jaipur was vested with the jurisdiction to Act as an AO, is fully supporte....
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....rtment, day in and day out, has been taking this stand that the Officer shown in the PAN profile is the correct Assessing Officer. B. Mir Zardari Qureshi v. ACIT [2023] 151 taxmann.com 408 (Raipur - Trib.) (DC 3-13) held that: "Whether since ITO, Ward-1(3), Bhilai at time of initiating proceedings and issuance of notice under section 148 dated 9-3-2018 was not vested with any jurisdiction over case of assessee, assessment framed on basis of 'reasons to believe' along with notice under section 148 dated 9-3-2018 issued by ITO, Ward- 1(3), Bhilai, i.e. a non-jurisdictional Officer, could not be sustained and was liable to be quashed - Held, yes [Paras 16, 17 and 18] [In favour of assessee]" C. Abdul Azeez Haroon vs DCIT (International Taxation) (2020) 317 CTR 610 (Mad) (DC 14-17) held that: "Reassessment-Notice under s. 148-Validity of notice issued by AO having no jurisdiction-For asst. yrs. 2012-13 to 2015-16, intimations under s. 143(1) have been issued by the Central Processing Centre in respect of the returns filed- Assessee's case is that during the financial year relevant to asst. yr. 2009-10 he had shifted his residence from Madurai to Shimoga, Karnataka, ....
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....aised only when there is a dispute on the question of territorial jurisdiction of a particular officer. Thus, the objection raised by the Officer, Circle (Intl Tax), Jaipur are completely baseless against the provisions of the law and deserves to be rejected. Kindly refer following case laws where such contention is directly supported: 1.4.2 Supporting Case Laws: A. Mir Zardari Qureshi v. ACIT [2023] 151 taxmann.com 408 (Raipur - Trib.) (DC 3-13) held that: "Whether time limit for raising objection to jurisdiction of Assessing Officer prescribed under sub-section (3) of section 124 has a relation to Assessing Officer's territorial jurisdiction and same would not apply to a case where assessee contends that action of Assessing Officer is without authority of law and therefore, wholly without jurisdiction - Held, yes - Whether since ITO, Ward-1(3), Bhilai at time of initiating proceedings and issuance of notice under section 148 dated 9-3-2018 was not vested with any jurisdiction over case of assessee, assessment framed on basis of' reasons to believe' along with notice under section 148 dated 9-3-2018 issued by ITO, Ward-1(3), Bhilai, i.e. a non- jurisdictional Off....
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....e., on 31-3-2021 - Whether since impugned notice under section 148 was issued to assessee on 6-4-2021 through e-mail, impugned notice under section 148 was time-barred and consequently, it was to be quashed - Held, yes [Paras 22-30] [In favour of assessee]" Recently Rajasthan High Court, Jaipur Bench has also so held in the case of M/s Mittal Pigments Pvt. Ltd. Vs. CIT & Ors in D.B.CWP No.8626/2023 (pr.7to9) (DC 36-39) S. No New law Specified authority u/s 151 1. Reopening made within 3 years from the end of the relevant A.Y. Pr. CIT or Pr. DIT or CIT or DIT 2. Reopening made after 3 years but before 10 years from the end of the relevant A.Y. Pr. CCIT or Pr. DGIT (in their absence CCIT or DGIT) S. No Old law Specified authority u/s 151 1. Reopening made within 4 years from the end of the relevant A.Y. Joint Commissioner (JCIT) 2. Reopening made after 4 years from the end of the relevant A.Y. Pr CCIT or CCIT or PCIT or CIT The issue involved is no more res-integra in as much as various high courts have now taken this view and quash the notices issued in violation of S.151. 2.3.1 A recent and very detailed decision is in the case of Siemen Financial v....
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....Assessment Year ("AY") 2017-2018 and since the impugned order as well as the notice are issued on 20th July 2022, both have been issued beyond a period of three years. Therefore, the sanctioning authority has to be the PCCIT as provided under Section 151(ii) of the Act. The proviso to Section 151 of the Act has been inserted only with effect from 1st April 2023 and, therefore, shall not be applicable to the matter at hand. 5. In the circumstances, as held by this Court in Siemens Financial Services Private Limited Vs. Deputy Commissioner of Income Tax & Ors. 2, the sanction is invalid and consequently, the impugned order 1. Writ Petition No. 2768 of 2022. 2. (2023) 457 ITR 647 (Bom.). Gaikwad RD 3/3 426-aswp-6192-2024.doc and impugned notice both dated 20th July 2022 under Sections 148A(d) and 148 of the Act are hereby quashed and set aside. 6. Petition disposed. No order as to costs. All rights and contentions are kept open." 2A. Also therefore, the impugned notice u/s 148 is barred by limitation u/s 149(1)(a). Therefore, the impugned notice and order deserves to be quashed. So also the consequent assessment order. 3. No Income Escaped Assessment: 3.1 No valid informati....
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....e link between the material coming to the notice of the Assessing Officer and the formation is belief regarding escapement of income. However, the Respondent AO did not conform the settled judicial guideline resulting the impugned notice and order, a nullity. 3.1.3 On the other hand however, a bare look upon the impugned draft assessment order u/s 144C(1) dated 29.03.2023 shows a serious contradiction in approach of the AO in as much as on one hand it is alleged that when the assessee was asked regarding the source of the funds used for the purchase of the immovable property (i.e. is the old residential house 15/547, Ibrahim Building, Shrinagar Road, Ajmer) which was purchased by the assessee from his mother on dated 21.11.2008 for Rs 7 lacs, it was not explained. He also alleged that the income generated from the transaction of the sale of the said residential house was not explained with the help of documentary evidences. But, then finally the AO alleged that the assessee did not produced any justification or documentary evidences regarding the above mentioned sale transaction of the immovable property, therefore, the sale consideration of Rs 69.90 lacs remained unexplained and....
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....se, the AO is bound to have served a draft of the proposed Order of Assessment (for short "Draft Order") to the Assessee giving him an opportunity to file his objection, if any, thereupon. This clearly implies that the very proposed variation has to be confronted to the Assessee, inviting his objections. However, in that view of the matter, in the instant case, the AO has not given that opportunity (or the draft order) as mandated in as much as in the draft Assessment Order (See Para 2 and Pg.2, top of the Assessment Order), he started with the proposed variation for want of source and after referring to S.69A and certain case laws, he made addition of Rs.69.90 lakh u/s 69A in that draft order, but while concluding and completing the impugned Assessment Order, he completely shifted the stand and now made the addition on account of LTCG as evident from the discussion made by him starting from para 4 pg. 4 and ending at pg.7. Undisputedly, the variation made on account of LTCG was not a part of the draft order as stated above and this way, no opportunity was given to the Assessee by way of draft order w.r.t the proposed variation, (i.r.t. LTCG as it was only w.r.t. S. 69A only). In t....
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.... the notice issued under s. 263 of the Act by the learned Principal CIT and therefore the opportunity was not granted to the assessee to rebut the same. Thus, it is contrary to the provisions of s. 263 of the Act, which specifically requires the grant of opportunity of being heard to the assessee. We find that the Hon'ble Supreme Court in CIT vs. Amitabh Bachchan (2016) 286 CTR (SC) 113: (2016) 135 DTR (SC) 73: (2016) 384 ITR 200 (SC) observed as under: "10 ...... What is contemplated by Section 263, is an opportunity of hearing to be afforded to the assessee. Failure to give such an opportunity would render the revisional order legally fragile not on the ground of lack of jurisdiction but on the ground of violation of principles of natural justice". GOA-5 Invalid Computation of LTCG: Hence, impugned notice u/s 148 and the consequent assessment order deserves to be quashed. Facts: The AO has dealt with this issue from page 5 onward. The issue involved was that the assessee this year sold a residential house for Rs 69,90,000/- on dated 28.07.2017. Based on this information alone, entire gross sale consideration, was considered to be the income escaping assessment u/s 147 a....
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....s, bills raised by the civil contractor (PB 66-67). However, all evidences were submitted to DRP (PB-16). The AO himself admitted that a copy of the valuation report by the registered valuer (PB 64-65) was submitted. No site verification was got done by him but he merely proceeded on mere suspicion. The deduction claimed u/s 54 of a new residential house vide the registered purchased deed dated 28.05.2018 (PB 52-62) was also denied. It is a fact on record that the appellant made a claim u/s 54 which requires the net capital gain only to be invested in the purchase of a new residential house which was admittedly done by the assesse and this fact has been stated by the AO himself at page 6 in para 2 giving details of the newly purchased property. But very strangely he switched to S.54F and alleging non-compliance of that provision denied the deduction. This shows a complete non-application of mind by the AO who merely proceeded with blind eyes, just to penalize the assessee since he was making an ex parte assessment. Repeated allegation of non-compliance does not entitle AO to penalize the assessee while making a best judgment assessment u/s 144 of the Act. He did not even consider....
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....ly to the show-cause notice, would reveal the details of sale consideration and the cost of acquisition would be the indexed cost of acquisition-Accordingly, in the present case, the words found in s. 149 which are 'income chargeable to tax' must be read in terms of 'income' as arising out of the 'capital gains' as provided under s. 48 and this is the only manner of understanding the words, 'income chargeable to tax' under s. 149(1)(b)- Income chargeable under the head of 'capital gains' shall be computed by deducting from the full value of the consideration, the indexed cost of acquisition-It cannot be stated that since the stage at which the notice is issued is at a premature stage, the entirety of consideration of Rs. 55,77,700 ought to be taken note of-Accordingly, the order dt. 21st March, 2023 passed under s. 148A(d) is set aside and the notice dt. 21st March, 2023 issued under s. 148 for the asst. yr. 2016-17 is set aside" Hence, impugned order u/s 148 dated 30.03.2022 and resultant order u/s 148A(d) dated 30.03.2022 may be quashed. Alternatively, the entire impugned addition deserves to be deleted. Additional GOA-10: Invoking S.115BBE of the Act is without jurisdiction....
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....must have to be classified under four heads of income as enumerated u/s 14 and if it doesn't fall under any specific head of income as per item A to E of S.14, such income has to be assessed under the residuary head of income i.e. item F of S.14. Therefore, income added u/s 68 or 69 etc. has to be given a specific head in terms of S.14, 4.3 The Hon'ble Supreme Court in case of Karanpura Development Co Ltd vs. CIT [1962] 44 ITR 362 (SC) held that these heads are in a sense exclusive to one another and income which falls within one head cannot be brought to tax under another head. Further, the Hon'ble Supreme Court in case of Nalinikant Ambalal Mody v CIT [1966] 61 ITR 428, has held that whether an income falls under one head or another is to be decided according to the common notions of practical man because the Act does not provide any guidance in the matter. Of course, lot of judicial precedents are available to a taxpayer to arrive at a conclusion about determination of appropriate head of income. 2.3 It is further submitted that whatever, was assessed by AO was nothing but Income from Capital Gains only and it cannot be termed as excess/undisclosed/unaccounted Inco....
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....d loss account as income from undisclosed sources. The net effect of this double entry accounting treatment is that firstly the unrecorded stock of rice has been brought on the books and now forms part of the recorded stock which can be subsequently sold out and the profit/loss therefrom would be subject to tax as any other normal business transaction. Secondly, the unrecorded investment which has gone in purchase of such unrecorded stock of rice has been recorded in the books of accounts and offered to tax by crediting the said amount in the profit and loss account. Had this investment been made out of known source, there was no necessity for assessee to credit the profit/loss account and offer the same to tax. Accordingly, we do not see any infirmity in assessee's bringing such transaction in its books of accounts and the accounting treatment thereof so as to regularize its books of accounts. In fact, the same provides a credible base for Revenue to bring to tax subsequent profit/loss on sale of such stock of rice in future. 2.11. Having said that, the next issue that arises for consideration is whether the amount surrendered by way of investment in the unrecorded stock of ric....
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....sh found U/s 69 of the Act and accordingly held that there is no justification for taxing such income u/s 115BBE of the Act. 4. There apart, there are many decisions available taking such a view in favor of the assesse on dated 22.09.2021 when the subjected assessment was framed by the AO. The above very relevant and crucial facts and the legal position was well available before the AO and there is nothing on record to show that he did not consider the same. In view of the facts & circumstances, judicial guidelines and the statutory provisions, the addition of Rs. 66.90 lakhs could not be subjected to S. 115BBE of the Act. Additional GOA 9: Violation of S.151A of the Act hence impugned notice and orders are nullity. Submission: 1. It is submitted that the impugned Order u/s148A(d) dt. 30.03.2022 as also the impugned Notice u/s 148 dt. 30.03.2022 are wholly without jurisdiction in as much as they have been issued in a complete and gross violation of the Notification No. 18/2022 dt. 29.03.2022 (PB-II 104) titled as E-Assessment of Income Escaping Assessment Scheme, 2022 issued by the Central Govt. in exercise of the power conferred by S.151A (1) & (2) of the Act which has m....
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....Ors. (2023) 334 CTR (Telangana) 646 (DC 97-107), it was held that: "Reassessment-Notice under s. 148A-Validity vis-a-vis notice by jurisdictional AO and not in faceless manner as per s. 144B r/w s. 151A-A plain reading of the two notifications issued by the CBDT dt. 28th March, 2022 and 29th March, 2022, would clearly indicate that the CBDT was very clear in its mind when it framed the two schemes with respect to the proceedings to be drawn under s. 148A, that is to have it in a faceless manner-From the factual matrix, firstly the statutory provisions of ss. 144B and 151A and secondly, the subsequent direction given by the Supreme Court in the case of Union of India & Ors. vs. Ashish Agarwal (2022) 326 CTR (SC) 473 : (2022) 213 DTR (SC) 217 what is clearly reflected is the fact that the Supreme Court has only permitted the Union of India to proceed further with the reassessment proceedings under the amended provision of law, more particularly, as amended by the Finance Act, 2021-In the present case, both the proceedings i.e., the impugned proceedings under s. 148A, as well as the consequential notices under s. 148 were issued by the local jurisdictional officer and not in the pre....
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....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 01.10.2019 unless a computer generated DIN has been allotted and is duly quoted in the body of such communication. Para 3 of the said Circular provides for certain exceptional circumstances when the communication can be issued manually but must mention such fact and the date of obtaining of the written approval of the Chief Commissioner/Director General of Income- tax for issue of said manual communication in the prescribed format, failing which, para 4 of the said circular states that such communication shall be treated as 'invalid' and shall be deemed to have never been issued. 1.2 In the instant case however, the undisputed and verifiable facts are that the directions issued by the Dispute Resolution Panel vide its order dated 28.22.2023 u/s 144C (5) of the Act is not an electronic communication but a manual order as is evident from the perusal of the same. Although there i....
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....etter refers to a DIN with respect to some notice under Section 148 of the Act dated 26th August 2022. The impugned notice issued to petitioner is dated 27th August 2022 and not 26th August 2022 for which the DIN is generated. Secondly, the procedure prescribed in Circular No.19 of 2019 dated 14th August 2019 for non-mention of DIN in case letter/notice/order has not been complied with by respondent no.1. It is settled that if DIN is not mentioned in the letter/notice/order, the reason for not mentioning the DIN and the approval from specified authority for issuing such letter/notice/ order without DIN has to be obtained and mentioned in such letter/notice/order. In the present case, in the impugned notice dated 27th August 2022, no such reference is there. Therefore, as held in Ashok Commercial Enterprises (Supra) and Tata Medical Center Trust (Supra), the impugned notice is clearly invalid and bad in law. It will be useful to reproduce paragraph 18 of Ashok Commercial Enterprises (Supra): xxx----xxx-----xxx-----xxx-----xxx Therefore, the impugned notice dated 27th August 2022 issued under Section 148 of the Act is invalid and bad in law as the same has been issued without a ....
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....power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categorized as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities." Strong reliance is also placed in the decision of His Late Highness Maharana Shri Bhagwat Singhji of Mewar vs. ITAT & Ors. (1996) 133 CTR (Raj) 97: (1997) 223 ITR 192 (Raj). The Rajasthan High Court in Sudesh Teneja vs. ITO (2022) 324 CTR (Raj) 577: (2022) 210 DTR (Raj) 105: (2022) 442 ITR 289 (Raj) held that (a) taxing statute must be interpreted strictly. Equity has no place in taxation. Nor while interpreting taxing statute intendment would have any place. (b) There is nothing unjust in the tax payer escaping if the letter of the law fails to catch him on account of the legislature's failure to express itself clearly. (c) It is axiomatic that taxation statute has to be interpreted strictly because the State cannot at their whims and fancies burden the citizens without authority of law. (d) In the matter of interpretation of charging ....
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....ex-II S. No. Particulars Pg. No. 22. Copy of Impugned Notice passed u/s 148 dt.30.03.2022 102 23. Copy of Screenshot of email id of assessee in which notice u/s 148 received 103 24. Copy of CBDT Notification No. 18/2022/F. No. 370142/16/2022-TPL (Part1 dt.29.03.2022) 104 25. Copy of PAN profile of ITD Portal 105 26. Copy of Circular No. 19/2019 [F.NO. 225/95/2019-ITA.II], Dt. 14.08.2019 106-107 Decision Compilation S. NO. PARTICULARS PAGE NO. 1. CIT Vs Smt Anjali Dua (2008) 219 CTR (Del) 183 1-2 2. Mir Zardari Qureshi v. ACIT [2023] 151 taxmann.com 408 (Raipur - Trib.) 3-13 3. Abdul Azeez Haroon vs DCIT (International Taxation) (2020) 317 CTR 610 (Mad) 14-17 4. Saroj Sangwan vs. ITO (2024) 162 Taxmann.com 704 (ITAT, Delhi) 18-22 5. Daujee Abhushan Bhandar (P.) Ltd. v. Union of India (2022) 136 taxmann.com 246 (Allahabad) 23-35 6. M/s Mittal Pigments Pvt. Ltd. Vs. CIT & Ors in D.B.CWP No.8626/2023 (Raj) 36-39 7. Siemen Financial vs DCIT (2023) 154 taxmann.com 159 (Bombay) 40-73 8. Balkrishna Barsha Sutar vs ITO, Mumbai (WP no. 6192/2024) Bombay High Court 74-76 9. SHL (India) (P) LTD. vs. Deputy Commissioner of Income Tax & Ors. (2021)....
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....alid jurisdiction and competence to issue the notice u/s 148. The ld. AR of the assessee submitted that the contention AO of that section 148 talks about the Assessing Officer only and not about the Jurisdictional Assessing Officer." She also took support from section 124(3) that no person shall be entitled to challenge the jurisdiction if no ROI has been filed after expiry of the time allowed in a notice u/s 148. Objecting to that finding the ld. AR of the assessee submitted that the term "Assessing Officer" ("AO") means the assessing officer only but not the "Jurisdictional Assessing Officer" ("JAO"). If the interpretation as contended, is accepted then the "AO" may means any AO situated anywhere in the country i.e. right from Jammu & Kashmir till Kanyakumari, may be the AO to assess the income of an assessee stationed at Ajmer, which can never be the legislative intention. In support the ld. AR of the assessee relied upon the definition of the AO given in section 2(7A) of the Act. The case of the assessee pertains to the Assessing Officer, Circle (Intl Tax), Jaipur was vested with the jurisdiction to Act as an AO, is fully supported by the PAN Profile and the jurisdictional deta....
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....regards the merits of the case the ld. AO in the draft order proposed the addition u/s. 69A of the Act. Whereas in the final order after the direction of the DRP he shifted that to long term capital gain for which he has not given any show cause notice and merely based on the surmises and conjecture completed the assessment assessing the capital gain without considering the material placed on record by the assessee. As it was submitted before the DRP by the assessee that there is no tax liability that arises in the case of the assessee and once DRP accepted the evidence of the assessee the order of the assessing officer is in gross violation of principles of nature justice and bad in law as well as on facts. There was direction of the DRP to consider the evidence filed by the assessee and there is no cross objection of the revenue that why the DRP has allowed those evidence to be considered that evidence needs to be considered. The ld. AR of the assessee raised various issues such there is no DIN, assessment not done in online mode as per Board circular and various technical latches and glitches in the order of the assessment for which he relied upon the written submissions filed a....
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....ion of Rs. 69,90,000/ made u/s 69A of the Act. In this matter, Hon'ble DRP has passed order dated 28.11.2023 and issued necessary directions to pass a reasoned order on the basis of submission of the assessee. In compliance to the said directions, final assessment order passed u/s 147 r.w.s. 144 on 29.12.2023 determining total income at Rs. 69,90,000/- after making an addition of Rs. 69,90,000/-. The assessee is now in appeal before Hon'ble ITAT. The pointwise comments on objections raised by the assessee during the appellate proceedings are furnished as under- (1) That notice u/s 148A(b) of the Act 1961 as also order u/s 148A(d) of the Act 1961 and notice u/s 148 of the Act 1961 were primarily issued by the ITO, Ward- 2(2), Ajmer in exercise of valid jurisdiction. In this regard, it may be mentioned that for the A.Y. 2018-19, assessee was a non-filer and his residential status was not known to the AO and the initial proceedings were carried out by the then AO on the basis of PAN card details available with him. In this case, information pertaining the transaction carried out by the assessee was conveyed through notice issued u/s 148A(b) of the Act dated 17.03.2022, req....
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....ioner or Chief Commissioner or the Principal Commissioner or Commissioner; or where the question is one relating to areas within the jurisdiction of different Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners, by the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub-section (1) of section 115WD or under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or sub- section (2) of section 115WE or sub- section (2) of section 143 or after the completion of the assessment, whichever is ea....
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....s of section 149 of the Act are as under: - Time limit for notice. 149(1) No notice under section 148 shall be issued for the relevant assessment year, (a) if three years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); ((b) if three years, but not more than ten years, have elapsed from the end of the relevant assessment year unless the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income chargeable to tax, represented in the form of- (i) an asset; (ii) expenditure in respect of a transaction or in relation to an event or occasion; or (iii) an entry or entries in the books of account, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more:/ From the above, it is clear that the time limit for issuance of notice u/s 148 in this case was 31.03.2022. On perusal of section, it is clear that the notice should be issued, which was done and clear from the note sheet enclosed. In this case, it is evident that the notice under reference was initiated on the ITBA System on 30.03.2022 and digitally signed by the Assessing Offic....
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....e of 148 received in April, so it is time barred because reopening of case made after 03 years, approval should have been taken from the Chief Commissioner or Director General is not acceptable on the ground that the notice u/s 148 of the Act was well issued to the assessee on 30.03.2022 and fulfils all conditions as laid down in the provisions of section 148 of the Act. It is evident that the proceedings against the assessee have been carried out in accordance with law and the procedure for reassessment has been strictly followed. As the said notice has already been issued within the prescribed time period i.e. 31.03.2022, so that, question of approval to be taken from the Chief Commissioner or Director General does not arise. (4) During the assessment proceeding, the assessee in response to notices issued did not produce any documentary evidence regarding the income generated from sell of immovable property. The assessee only stated that "..... We are in the process of collecting the required date in respect of the sale of property. Hence, we will submit the same as soon as possible once we collect them". Besides furnishing documentary evidence, the assessee has raised objectio....
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....ils of payment for cost of improvement made by the assessee, it is submitted that the assessee has not furnished copy of bank statement as well as payments details in his written submission showing the source of funds used for cost of improvement in the aforesaid immovable property. It is established that the assessee was non-cooperative during the assessment proceedings. The Hon'ble DRP in its order dated 28.11.2023 at para-No. 3.4 has also noted as under - "3.4 However, the assessee neither presented (or through authorized representative) before the DRP nor sought any adjournment. The assessee further could not substantiate the cost of improvement or property allegedly done in multiple years." Further, there is no such information available on record, which disclose the mode of payment made by the assessee towards cost of improvement. Even, assessee did not furnish details of payment towards cost of improvement before Hon'ble DRP. (7) The objection raised by the assessee that the impugned notice u/s 148 and impugned order u/s 148A(d) of the Act dated 30.03.2022 are nullity having been passed in complete violation of the binding notification dated 29.03.2023 issued u....
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....: 1. In response to the contention that the AO had no jurisdiction, it was contended that after coming to know from the assesse only, the jurisdiction of the case was transferred to DCIT, CIRCLE (INTL. TAX), Jaipur and it was the duty of the assessee to disclose correct facts. 1.1 (Reply Para 1) It is submitted that in fact the AO is rather trying to avoid the real challenge. It's a fact that the assessee cannot change the jurisdictional detail (PB-1 17), (PB-11-105) however the AO is silent as to precisely what is the date on which he transferred the jurisdiction or further how AO himself can transfer unless there is a Notification by the competent authority transferring the jurisdiction from ITO WD-2, Ajmer to the International Taxation but unfortunately no detail has been supplied. Also there is absolutely no comment made by them on the PAN profile which shows the jurisdictional detail as DCIT, International Taxation which is not within the control of the assessee. Exactly when international taxation is shown or was changed from ITO Ajmer to that, has not been explained by the AO. Further the assessee has duly discharged its duty while uploading the details for the passp....
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....ired from the PR CCIT/DGIT was not obtained. Hence, it was invalid. 3. (Reply para 4) The repeated allegation of non-cooperation and not furnishing of evidences is completely contrary to the facts on record. The appellant being an NRI, for last several years was not able to manage his affairs and therefore, all evidences were filed before the DRP as evident from paper of index (PB16) and the relevant documents were even referred to by the AO itself in the assessment order pursuant to the directions of the DRP who sent all those papers vide its directions u/s 144C(5) to the AO. 4. (Reply Para 5) As regards absence of DIN on the direction u/s 144C(5), the Ld. DR has ignored that subsequent mentioning of DIN number is not the solution. The fact is that on that direction order, DIN was mentioned manually and told to appellant vide separate letter. Precisely, such situation has been dealt in the case of Ashoka Commercial Enterprise vs ACIT (2023) 334 CTR 757 (Bom.) in Pr18 (DC 127). 5. (Reply para 7) The Ld. DR has very clearly misread the date of the Notification as 29.03.2023 as against the correct date of 29.03.2022 (PB104) and impugned notice was issued next day on 30.03.2022 ....
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....on the case vide his letter dated 24.05.2024 wherein the ld. AO contended that the assessee was non-filer and his residential status was not known to the AO and the initial proceedings were carried out by the then AO on the basis of PAN Card details available with him. Thus, the ld. AO did not controvert the fact that the assessee is NRI as per his PAN profile filed and has simply relied upon the fact that the ld. AO did not know the status of the assessee and based on that aspect, he assumed jurisdiction. The ld. AO also reported that the assessee was having the opportunity to challenge the jurisdiction within time limit. He went on further that since the assessee failed to do so, after completing the assessment proceedings, the assessee cannot take liberty to challenge the jurisdiction. As regards the service of notice the ld. AO submitted that "In this matter, limitation to issue notice u/s. 148 of the Act was going to be expired on 31.03.2022. Accordingly, notice was issued to the assessee through the ITBA system on 30.03.2022 itself. In this regard, a copy of a system generated note sheet showing the chronological events of the assessment proceedings of this case are enclosed ....