TaxTMI 
TaxTMI 
2024 (10) TMI 848
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....s. 5,81,00,000/- by ignoring the facts as brought on record by the AO that the assessee failed to prove the identity, genuineness and creditworthiness of the shareholders as per the parameters of the legal provisions u/s 68 of the Act?" 2. "Whether on points of law and on facts & circumstances of the case, the Id. CIT(A) was justified by ignoring that after the orders of the Hon'ble Apex Court in the cases of M/S Lovely Export Pvt Ltd. and M/S Divine Leasing & Finance Ltd. (2007), the government has brought amendment in the section 68 of the Act by introducing two provisos that the source of source of share capital may be verified. An additional onus needs to be placed on such companies to also prove the source of money in the hands of such shareholder or persons making payment towards issue of shares before such sum is accepted as genuine credit. If the company fails to discharge the additional onus, the sum shall be treated as income of the company and added to its income which in this case is completely unverified. 3. "Whether on points of law and on facts & circumstances of the case, the Id. CIT(A) erred in ignoring the Hon'ble Supreme Court's rece....
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....he right to add, amend or alter any of the grounds of cross objection. 4. The brief facts of the case stated are that the assessee is a private limited company and filed his return of income electronically on 28.09.2015 declaring a loss of Rs. (43,88,925/-). The assessee is engaged in the business of trading of Silver bullion, Silver ornaments, and Gold bars during the year under consideration. The case of the assessee was selected for scrutiny through CASS under the category 'Limited Scrutiny' for FY 2015-16 to examine the following issues: (1) Mismatch in amount paid to related persons u/s 40A(2)(b) reported in the audit report and ITR. (2) large share premium received during the year. Statutory notices u/s. 143(2) and 142(1) were issued to the assessee in response to the notice and questionnaire. Counsel of the assessee attended the hearing of the assessment from time to time and filed the written submission with details. During the course of the assessment proceedings, it was found that the assessee has received share application money and a share premium of Rs. 5,81,00,000/- from Kolkata-based investor company M/s Torrent Developers Private Limited. In ....
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....of the investor companies reveals that funds were received and transferred on the same day in and from their accounts, leaving meagre balance in their accounts, Ld. AO further analysed, the modus operandi of shell companies carried out in providing entries in the garb of share application and share premium. With such observations, Ld. AO has culminated the assessment by adding Rs. 5.81/- crore as undisclosed income in the hands of assessee company, as chargeable to tax under Section 68 r.w.s. 115BBE of the Act. 5. Aggrieved by the aforesaid order of the Ld. Assessing Officer, the assessee preferred an appeal before the Ld. CIT(A), wherein the contentions of the assessee have been accepted by the Ld. CIT(A), and the entire addition of share capital money for Rs. 5,81,00,000/- termed as unexplained cash credit by the Ld AO u/s 68 has been vacated. 6. Dissatisfied with the order of Ld. CIT(A), now the revenue has carried this matter before us under the present appeal. On the appeal of the department, the assessee has also filed a cross objection. 7. At the outset, when the captioned appeal and CO has been taken up for hearing, and the registry pointed out that the C.O. filed ....
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....ct of issue in appeal are voluminous, same were provided to the new counsel a little late. The new counsel so appointed started preparing the arguments very recently and in the course of such preparation, it transpired that 1^st notice u/s 143(2) was issued by non-jurisdictional AO and no notice u/s 143(2) was issued by Jurisdictional AO, with in the prescribed time and therefore, the assessment order and the assessment proceedings suffer from jurisdictional illegality. This fact came to be noticed very recently and the assessee was therefore advised by the new counsel to file cross objection, challenging the legality of the assessment proceedings on this account. On receipt of such advice, cross objection has been filed. Since the earlier counsel of assessee is not much into litigation practice, this issue could not be taken before ld. CIT(A) nor could it be timely briefed to the new counsel. Therefore, your honour would kindly appreciate that the delay in filing cross objection is attributable to the assessee not having been advised earlier. There is therefore, a reasonable cause for the delay, which is unintentional. 5. In view of above facts and submissions, i....
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....wever, by way of a forwarding letter, additional ground relating to taxability of the interest was taken up. Vide para 3, Hon'ble Supreme Court observed that u/s 254, the Tribunal is empowered to pass such orders as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. Hon'ble Supreme Court observed that we fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. ii) Jute Corporation of India Ltd. vs CIT (1991)187 ITR 688 (SC) Before the AAC, the assessee raised an additional ground claiming deduction, on the basis of decision of Hon'ble Supreme Court in the case of Kedarnath Jute Manufacturing Co. Ltd (1971) 82 ITR 363 (SC). The Tribunal held that the AAC had no jurisdiction to entertain additional ground. It was held that an appellate authority while hearing the appeal against the order of the subordinate authority, has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions.....
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....fore the Hon'ble Income Tax Appellate Tribunal, Raipur Bench, Raipur Application u/r 27 of Income Tax (Appellate Tribunal) Rules, 1963 Name of the assessee : Rajdhani Jewellers & Gems P. L Assessment Year : 2015/16 ITA No. : ITA no. 79/RPR/2020 Department 1. Against the order of Ld. CIT(Appeals), Department has preferred second appeal, which is pending before Hon'ble ITAT. 2. In this case, the AO made addition of Rs. 5,81,00,000/- u/s 68, on account of share capital holding that the companies who had given money to the investor of assessee had no income and had raised money from Kolkata-based companies. The bank account of 3 companies from whom the investor of assessee received money only showed rotation of money. 3. Ld. CIT(A) deleted the entire addition mainly holding that: - i) Investor had net worth of Rs. 15.81 crore and invested in many other companies. ii) Money was raised by investor by selling investment in shares. For AY 2012/13, investor assessed u/s 143(3). iii) Capital in the hands of investor company accepted in its case, investment out of such capital cannot be doubted. ....
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....essee is of "Opp. Bijli Office, Budha Para". The area of "Budha Para" falls under jurisdiction of ITO-4(5), Raipur whose ACIT would be 4(1), Raipur. iv) Therefore, jurisdiction over the assessee was with DCIT - 4(1), Raipur and it was never with ITO - 1 (1), Raipur. 7. Since it is the first notice u/s 143 (2) which gives jurisdiction to an AO to proceed with assessment and since such jurisdiction was not validly assumed by AO in absence of notice having been issued by the right AO within the prescribed time, consequent assessment order passed by the AO is rendered without jurisdiction and is unsustainable. 8. Therefore, the assessee most respectfully wishes to invoke Rule 27 of ITAT Rules, 1963 to challenge the order of Ld. CIT(A) on the following) ground: - "The assessment order passed by AO is illegal, invalid, without jurisdiction and is liable to be quashed as no notice u/s 143(2) was issued by the jurisdictional AO within the prescribed time. The assessment order is unsustainable." 9. In AAA Paper Marketing Ltd. vs ACIT in ITA No. 167, 168, 321, 322 & 192/LKW/2016 vide order dt. 28.04.2017 Hon'ble Lucknow Bench of ITAT ("B" Benc....
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....r limitations, if any, prescribed by the statutory provisions. It held vide para 6 that the appellate authority must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. iii) Venture Textiles Ltd. vs CIT in Income Tax A eal no. 958 of 2017 dt. 12.06.2020 of Bombay High Court Vide para 21.1, Hon'ble High Court held that a jurisdictional issue can be raised before the High Court for the 1st time and adjudicated upon even if it was not raised before the Tribunal. iv) Ashish Estates & Properties P. Ltd. vs CIT (2018) 102 CCH 411 (Bom.). (2018) 257 Taxman 585 (Dom.) Vide para 9, it was held that jurisdictional issue going to the root of the matter could be raised at any time, even before Supreme Court for the 1st time. 8. It is most humbly and respectfully submitted that the assessee may kindly be allowed to invoke Rule 27 and this application may kindly be admitted, per need of justice. Thanking you, Yours faithfully, For Rajdhani Jewellers & Gems Pvt. Ltd. 12. On perusal of the aforesaid application of the assessee, it is observed that the ....
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....DCIT-3(3)(2) vs. M/s. Watermark Systems (I) Pvt Ltd & Others Ltd. in ITA No. 4836 & Others, vide order dated 27/02/203, where in ITAT, Mumbai, "D", Bench has observed as under: However, it was fairly pointed out by the Ld. AR for AY 2009-10, (refer chart-1 M/s W. System) the income declared was loss to the tune of Rs. (-) 45,52,893/-; and for ay. 2009-10 for M/s W. Financial income declared was loss to the tune of Rs.(-)71,23,213/- which according to him, was well within the pecuniary jurisdiction/ taxable jurisdiction (since profit includes loss) of, the DCIT, Circule3(3) and therefore, he was competent to initiate the re-opening of the assessment. Commissioner of Income Tax vs. Gold coin health food (P) Ltd., reported in (2008) 304 ITR 0308 (SC), in this judgment Hon'ble Apex court has held that the expression 'income' should be understood to include losses: The Position has been elaborately dealt with by this Court in CIT vs. Harprasad & Co. (P) Ltd. 1975 CTR (SC) 65 : (1975) 99 ITR 118 (SC). This Court held with reference to the charging provisions of the statute that the expression 'income' should be understood to include losses. The expres....
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....urisdiction over the case of the assessee, therefore, the issuance of notice by ITO itself makes the first notice, invalid. It is also submitted that notice issued by the ACIT/DCIT was also invalid, who have issued the notice u/s 143(2) on 28.07.2017, after the stipulated date specified under the provisions of the Act i.e., 30.09.2016, resultantly the assessment order passed was illegal and without jurisdiction, reliance was placed on following judgments: - Durga Manikanta Traders vs ITO in ITA No. 59/RPR/2019 dated 12.12.2022, relevant findings are extracted as under: 15. On the basis of the aforesaid facts, we are of the considered view, that as stated by the Ld. AR, and, rightly so, as per the CBDT Instruction No.1/2011, dated 31.01.2011 the jurisdiction over the case of the assessee who is located in a mofussil area i.e. Bhilai and had filed a non-corporate return for the year under consideration, i.e., A.Y. 2014-15 declaring an income of Rs. 6,57,380/- was vested with the ITO, Ward 1(1), Bhilai. Although notice u/s. 143(2), dated 24.09.2015 had been issued within the stipulated time period, i.e., within six months from the end of the relevant assessment year which ....
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....foresaid order of the Hon'ble High Court had thereafter, been upheld by the Hon'ble Supreme Court in the case of ACIT, Circle- 1 Vs. Pankajbhai Jaysukhlal Shah[2020] 120 taxmann.com 318 (SC). Also, we find that the similar view had been taken by this Tribunal in its recent order passed in the case of Shri Sudhir Kumar Agrawal, Durg Vs. ITO, Ward-2(2), Bhilai in ITA No. 158/RPR/2017 dated 17.10.2022, where in dealing with the multifacet contentions that were raised by the department, the Tribunal had observed as under: "13. On the basis of our aforesaid deliberations, we are in agreement with the Ld. AR that though the assessment proceedings were rightly initiated and initially embarked upon by Dy. CIT, Circle- 1, Bhilai i.e. the officer who was vested with the jurisdiction over the case of the assessee, but the same thereafter had wrongly been framed by an officer who as observed by us hereinabove did not have jurisdiction over the case of the assessee in so far the year under consideration was concerned. As the criteria laid down vide the CBDT Instruction No. 1/2011, dated 31.01.2011 for conferring the varied jurisdictions with the ITOs/DCs/ACs on the basis of income decl....
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....sub-section (2) of Section 124 contemplates the manner in which any controversy as regards the territorial jurisdiction of an A.O is to be resolved. Apropos, sub- section (3) of Section 124 of the Act, the same places an embargo upon an assessee to call in question the jurisdiction of the A.O where he had initially not raised such objection within a period 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 143. In sum and substance, the obligation cast upon an assessee to call in question the jurisdiction of the A.O as per the mandate of sub-section (3) of Section 124 is confined to a case where the assessee objects to the assumption of territorial jurisdiction by the A.O, and not otherwise. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of Peter Vaz Vs. CIT, Tax Appeal Nos. 19 to 30 of 2017, dated 05.04.2021 and that of the Hon'ble High Court of Gujarat in the case of CIT Vs. Ramesh D Patel (2014) 362 ITR492 (Guj.). In the aforesaid cases the Hon'ble High Courts have held that as Section 124 of the Act pertains to territorial jurisdiction vested with an ....
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....u/s. 143(2) dated 24.09.2013, which thereafter had culminated into an assessment framed by the Income-Tax Officer, Ward-2(2), Bhilai vide his order passed u/s. 143(3), dated 30.03.2015 does not suffer from any infirmity. In our considered view the aforesaid contention of the Ld. DR is absolutely misplaced and in fact devoid and bereft of any merit. As the aforesaid CBDT Instruction No.1/2011, dated 31.01.2011 exclusively vests the pecuniary jurisdiction over the case of the assessee for the year under consideration i.e. A.Y. 2012-13 with the ACs/DCs, therefore, in our considered view despite vesting of concurrent jurisdiction with the Income- Tax Officer, Ward-2(2), Bhilai and the Dy. CIT, Circle-1, Bhilai the assessment in his case for the year under consideration could only have been framed by the Dy. CIT, Circle-1, Bhilai. Neither is there any reason discernible from the orders of the lower authorities nor demonstrated before us by the ld. DR which would by any means justify framing of the assessment vide impugned order u/s 143(3), dated 30.03.2015 by the Income-Tax Officer, Ward-2(2), Bhilai. Apart from that, we find that as per the mandate of sub-section (1) of section 127 of ....
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....IT, Circle-1, Bhilai to Income-Tax Officer, Ward-2(2), Bhilai. 16. Be that as it may, we are of the considered view that as in the case of the assessee the assessment order u/s. 143(3), dated 30.03.2015 had been passed by a non-jurisdictional officer i.e. the Income-Tax Officer, Ward-2(2), Bhilai, which is in clear contravention of the CBDT Instruction No. 1/2011 dated 31.01.2011, therefore, the same cannot be sustained and is liable to be struck down on the said count itself. Before parting, we may herein observe that a similar issue as regards the validity of an assessment framed by an A.O who had invalidly assumed jurisdiction in contravention to the CBDT Instruction No. 1/2011, dated 31.01.2011 had came up in a host of cases before the various benches of the Tribunal, wherein the respective assessments framed were struck down, for the reason that the same were passed by officers who were not vested with the requisite jurisdiction as per the CBDT Instruction No.1/2011, dated 31.01.2011. Our aforesaid view is fortified by the order of the ITAT, Kolkata Bench 'SMC' in the case of Anderson Printing House (P) Ltd. Vs. ACIT (2022) 192 ITD 548 (Kolkata-Trib.). In its order th....
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....lacs Upto Rs. 20 lacs Above Rs. 20 lacs Metro charges for the purpose of above instructions shall be Ahmedabad, Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4-2011. 6. Now, in this case, the assessment has been framed by the ACIT. At this stage, it will be appropriate to refer to the provisions of section 127 of the Act as under: Power to transfer cases (1) The [Principal Director General or] Director General or [Principal Chief 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 other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. 7. A perusal of the above statutory provisions would reveal that jurisdiction to transfer case from one Assessing Officer to othe....
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....r 2015-16, order dt. 8th January, 2020, under identical circumstances, held as under: - "5. After hearing rival contentions, I admit this additional ground as it is a legal ground, raising a jurisdictional issue and does not require any investigation into the facts. The ld. Counsel for the assessee submitted that as per Board Instruction No. 1/2011 [F. No. 187/12/2010-IT(A-I)], dt. 31/01/2011, the jurisdiction of the assessee is with the Assistant Commissioner of Income Tax, Circle-1, Durgapur, as the assessee is a non- corporate assessee and the income returned is above Rs. 15,00,000/- and whereas, the statutory notice u/s 143(2) of the Act, was issued on 29/09/2016, by the Income Tax Officer, ward-1(1), Durgapur, who had no jurisdiction of the case. He submitted that the assessment order was passed by the ACIT, Circle-1(1), Durgapur, who had the jurisdiction over the assessee, but he had not issued the notice u/s 143(2) of the Act, within the statutory period prescribed under the Act. Thus, he submits that the assessment is bad in law. 5.1. On merits, he rebutted the findings of the lower authorities. The ld. Counsel for the assessee relied on certain case-law, ....
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....9.2013 and the same was served on the assessee on 19.09.2013 as noted by the AO. The AO noted that since the returned income is more than Rs. 15 lacs the case was transferred from the ITO, Ward-1, Haldia to ACIT, Circle-27 and the same was received by the office of the ACIT, Circle-27, Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act on the same day. From the aforesaid facts the following facts emerged: The assessee had filed return of income declaring Rs. 50,28,040/-. The ITO issued notice under section 143(2) of the Act on 06.09.2013. The ITO, Ward-1, Haldia taking note that the income returned was above Rs. 15 lacs transferred the case to ACIT, Circle-27, Haldia on 24.09.2014. On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle-27, Haldia. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of Rs. 50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit w....
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....n No.1/2011, dated 31.01.2011, which divested him of his jurisdiction over the case of the assessee for the year under consideration i.e. AY 2012-13, therefore, the same cannot be sustained and is liable to be struck down in terms of our aforesaid observations. We, thus, in terms of our aforesaid observations quash the order passed by the Income-Tax Officer, Ward-2(2), Bhilai for want of jurisdiction on his part." 17. On the basis of our aforesaid observations, we are of the considered view that as in the case of the present assessee before us the impugned assessment had been framed by the ITO-1(1), Bhilai vide his order passed u/s.143(3) dated 29.12.2016 on the basis of a notice u/s. 143(2), dated 24.09.2015 that was issued by the DCIT-1(1), Bhilai, i.e., an A.O who at the relevant point of time was not vested with jurisdiction over the case of the assessee, therefore, the assessment so framed cannot be sustained and is liable to be struck down on the said count itself. Apropos the notice issued u/s.143(2) of the Act, dated 05.05.2016 by the ITO- Ward 1(1), Bhilai, we are of the considered view that as the said notice was issued after the lapse of the stipulated time peri....
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.... relevant assessment year, filed return disclosing income of more than Rs. 15 lakh floc which assessment was completed by Assistant Commissioner, said pecuniary limit fixed for distribution of work between officers would not mean that Assessing Officer having territorial jurisdiction over assessee would lack jurisdiction to issue reopening notice for said year". (2) The Hon'ble High Court of Delhi in the case of Abhisek Jain v. Income Tax officer, Ward-55(1), New Delhi reported in 120181 94 taxmann.co{n 355 (Delhi) wherein it was held that "in terms of section 124(3)(b) jurisdiction of an Assessing Officer cannot be called in question by an assessee after expiry of one 1010th from date on which he was served with a notice for reopening assessment under section 148". (3). The Hon'ble High Court of Bombay in the case of Suresh v. Additional Commissioner of Income Tax reported in 120171 81 taxmann.com 346 (Bombay)/[2016] 385 ITR I (Bombay). 12017] 81 taxmann.com 346 (Bombay) wherein it was held that "on facts there was no merit in the submission advanced that the impugned notice issued by the Assessing Officer was illegal. bad in law and without jurisdiction.....
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....e on merit. Yours sincerely, Commissioner of Income Tax, (DR) ITAT, Raipur 20. With aforesaid submissions Ld. CIT DR submitted that since the jurisdiction was not challenged by the assessee in terms of sec. 124(3)(b) within a months' time when the first notice u/s 143(2) was served on the assessee, the assessee is not entitled to raise the issue at this stage. It is also submitted that the respondent can invoke rule 27 of the ITAT rules only to support order appealed against on any ground decided against him or cannot seek any further or more relief then what has been granted to him by the Ld. CIT(A). It is the prayer of Ld. CIT DR that considering the aforesaid submission the CO filed by the assessee and the additional ground should be rejected and the appeal should be decided on merits. 21. We have considered the rival submissions, perused the material available on record and the case laws. Admittedly, in the present case the mandatory notice u/s 143(2) for initiating the assessment proceedings was issue by ITO Ward 1(1) vide notice dated 13.04.2016, who at relevant point of time was not vested with valid jurisdiction over the case of the assessee, since the cases hav....
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....ial jurisdiction and would have no relevance in so far his inherent jurisdiction for framing the assessment is concerned. Also, support is drawn from a recent judgment of the Hon'ble High Court of Calcutta in the case of Principal Commissioner of Income-tax Vs. Nopany & Sons (2022) 136 taxmann.com 414 (Cal). In the case before the Hon'ble High Court the case of the assessee was transferred from ITO, Ward-3 to ITO, Ward-4 and the impugned order was passed by the ITO, Ward-4 without issuing notice u/s 143(2) and only in pursuance to the notice that was issued by the ITO, Ward-3, who had no jurisdiction over the assessee at the relevant time. Considering the fact that as the assessment was framed on the basis of the notice issued under Sec. 143(2) by the assessing officer who had no jurisdiction to issue the same at the relevant point of time, the Hon'ble High Court quashed the assessment. Apart from that, the aforesaid view is also supported by the order of the ITAT, Kolkata 'B' Bench in the case of OSL Developers (p) Ltd. Vs. ITO, (2021) 211 TTJ (Kol) 621 and that of ITAT, Gauhati Bench in the case of Balaji Enterprise Vs. ACIT (2021) 187 ITD 111 (Gau.). Accordingly, on the basis of....
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.... adverting to and to deal with the other contentions raised by the Ld. AR as per the grounds of appeal in the instant case, which, therefore, are left open. 29. In the result appeal of the assessee is allowed, in terms of our aforesaid observations. Order pronounced in the open court on 24/01/2024. CORRIGENDUM ORDER Dated : 24.01.2024 ORDER This corrigendum is being issued for rectifying the paragraph no. 28 & 29 in ITA No. 79/RPR/2020 & CO No.9/RPR/2023. The existing observations to be rectified: 28. Since we have quashed the assessment for want of valid assumption of jurisdiction by the AO, therefore, we refrain from adverting to and to deal with the other contentions raised by the Ld. AR as per the grounds of appeal in the instant case, which, therefore, are left open. 29. In the result appeal of the assessee is allowed, in terms of our aforesaid observations. which is rectified herewith and shall be read as: "28. Since we have quashed the assessment for want of valid assumption of jurisdiction by the AO in deciding the ground of appeal in CO of the assessee disputing the validity of assumption of jurisdiction by the assessing o....