AI Drafter 
TaxTMI 
TaxTMI 
2024 (9) TMI 1560
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.... assessment u/s 147 by issue of notice u/s 148 dated 28.03.2019 by the Assessing Officer, which is not as per provisions of law, clearly outside the sanction of law, illegal, bad-in-law, barred by limitation, unsustainable, in gross violation of the principles of natural justice or otherwise void for want of jurisdiction. 2. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) erred in upholding the ex-parte order passed by the Ld. Assessing Officer u/s 144 r.w.s 147 of the Income Tax Act, 1961. 3. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) erred in confirming the Ld. Assessing Officer's action in not disposing off the objections raised by appellant on 25.11.2019 (submitted online as well as across the table) and holding that objections were not filed as per text of the assessment order without verifying the claim of the appellant regarding filing of objections from the record of the Assessing Officer, even though, a copy of which was placed in the paper-book before Ld. Commissioner of Income Tax (Appeals). 4. On the facts and in the circums....
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.... sale by the appellant through online platform of recognized stock exchange through the SEBI registered stock broker. 8. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) erred in confirming the Ld. Assessing Officer's action in invoking the provisions of section 69A for making an addition of Rs 10,70,000/- despite the fact that evidence relating to the contract notes relating to online sales through recognized stock exchanges and SEBI Registered broker and payments made through banking channel was very much in the paper-book filed before the Ld. Commissioner of Income Tax (Appeals), who did not get any enquiries done to disprove the onus, so discharged by the appellant." 3. The relevant facts in brief are that reassessment proceedings were initiated in the case of the Appellant for the Assessment Year 2012-13, and assessment was framed on the Appellant, vide order dated 04/12/2019, passed under Section 147 read with 144 of the Act. The Assessing Officer rejected the exemption claimed by the Appellant under Section 10(38) of the Act in respect of Long Term Capital Gains arising from sale of shares of Tilak Ventur....
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....ion under Section 10(38) of the Act and making addition of trade value of INR 10,77,000/- as unexplained income in the hands of the Appellant invoking provisions of Section 69A of the Act. 6. We have considered the rival submission and perused the material on record. 7. We would first take up the issue of validity of the re-assessment proceedings. However, before dealing with the specific ground raised by the Appellant we deem it appropriate to briefly refer to the legal background. 11.1. In the case of GKN Driveshafts (India) Ltd. Vs. ITO (2003) 259 ITR 19 (SC) the Hon'ble Supreme Court had laid down the procedure to be adopted in case of reopening of assessment under Section 147 of the Act. In that case notice under Section 148 of the Act read with Section 143(2) of the Act was issued by the assessing officer calling upon the assessee in that case to give details in connection with the return of income. In a writ petition filed by the assessee, the Hon'ble Delhi High Court took the view that the petition was premature. Being aggrieved, the assessee filed special leave petition before the Hon'ble Supreme Court. Though the Hon'ble Supreme Court declined to interfere ....
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....nt to the reasons recorded in support of the reopening Notice dated 28th March, 2008.?" 11.4. Answering the above substantial question of law in favour of the assessee, the Hon'ble Bombay High Court held that in the facts of that case the Tribunal was not correct in restoring the issue back to the file of Assessing Officer for passing the fresh assessment. The relevant extract of the aforesaid judgment reads as under: "7 On further Appeal, the Tribunal passed the impugned order. By the impugned order it held that the Assessing Officer was not justified in finalizing the Assessment, without having first disposed of the objections of the appellant. This impugned order holds the Assessing Officer is obliged to do in terms of the Apex Court's decision in GKN Driveshafts (India) Ltd., v/s. ITO 259 ITR 19. In the aforesaid circumstances, the order of the CIT(A) and the Assessing Officer were quashed and set aside. However, after having set aside the orders, it restored the Assessment to the Assessing Officer to pass fresh order after disposing of the objections to re-opening notice dated 28 March, 2008, in accordance with law. 8 We note that once the impugn....
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....ay High Court held that assessment order passed by the assessing officer is without following the procedure as laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (supra) was without jurisdiction. 8. Coming back to the facts of the present case we find that the reasons recorded were furnished by the Assessing Officer to the Appellant as annexure to communication/letter, dated 11/11/2019 which was also accompanies by notice issued under Section 142(1) of the Act. On 25/11/2019, with period of 2 weeks, the Appellant filed Objections to Reopening of Assessment electronically as response to notice issued under Section 142(1) of the Act. On 25/11/2019, itself the Assessing Officer issued a show cause notice to the Appellant. From the aforesaid it is clear that the Assessing Officer did not dispose off the objections and proceeded with the reassessment proceedings. In view of the aforesaid, we hold that the finding returned by the CIT(A) while disposing off Grounds No.3 raised by the Appellant before the CIT(A) is also contrary to material on record and factually incorrect. We note that in the statement of facts filed before the CIT(A) along with appeal in Form No. 3....