2024 (10) TMI 1200

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....nd/or addition made by assessing officer and confirmed by CIT(A) may please be deleted. 4. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of appeal." 2. The assessee vide application dated 19.06.2024 has raised the following additional grounds of appeal: "On the facts and circumstances of the case as well as law on the subject, the learned CIT(A) has erred in confirming the action of Assessing Officer in passing the order under section 143(3) of the Act without issuing notice under section 143(2) of the Act." 3. Rival submissions of both the parties and perused the record. The learned Authorized Representative (ld. AR) of the assessee submits that vide application dated 19.06.2024, the assessee has raised additional grounds of appeal. The additional ground of appeal is purely legal and nature. No new facts are to be brought on record for adjudicating additional grounds of appeal. Facts relating to adjudication of additional ground of appeal are emanating from the orders of lower authorities itself. The assessment order was passed without issuing notice under section 143(2), which is condition precedent and cannot be disp....

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....f Income-tax, Ahmedabad dated 11.07.2024 and reply of DCIT, Central Circle - 2, Surat dated 16.08.2024 is filed. The ld. AR submits that till date no such proof of issuance of notice under section 143(2) is provided to the assessee. In anticipation of contention of revenue that notice under section 143(2) is not required, if no return of income is passed after expiry of 30 days of time period prescribed in the notice under 148. The ld AR of the assessee submits that even such stand is not sustainable on the basis of various decisions of Tribunal are as follows: * Krypton Diamonds Pvt. Ltd. vs. ACIT, in ITA 310, 311 & 312/SRT/2019 (Surat - Trib.) * Mukesh Mahavirprasad Sen vs. ITO - ITA 106, 107/SRT/2017 (Surat Trib.) * Deepak S. Mehta vs. ITO - ITA 1503/AHD/2017 (Surat Trib.) * GN Mohan Raju vs. ITO - 57 taxmann.com 415 (Bang.) 5. On merit of addition on account of bogus purchase, the ld. AR of the assessee submits that assessee is engaged in the business of cut and polished diamond by procuring rough diamond and getting processed through outside agencies. The assessee maintained complete books of accounts purchase together with stock register and sale register. All quanti....

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.....) * Haryana Acrylic Manufacturing Co. vs. CIT - 308 ITR 38 (Del.) * Deepak Bajaj vs. ITO - ITA No.721/Kol/2020 (Kol) 7. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the revenue, against the additional grounds of appeal submits that notice under section 148 dated 30/03/2015 was served upon the assessee. The assessee has not filed return of income as per the time allowed in notice under 148. Since no return in response to notice 148 within time was filed nor any objection against reopening was raised by assessee. The assessee has no legal right to raise such objection at this stage. The assessee duly participated in the assessment proceeding without raising any such objections. 8. The assessee has raised this additional ground of appeal for the first time before Tribunal, therefore, such ground of appeal should not be entertained for admission. No such ground of appeal was raised before ld. CIT(A). On merit, against additional ground of appeal, Sr. DR submits that once the assessee participated in the proceeding and contested such assessment proceeding, the assessee has not shown whether he has suffered any prejudice and such non-issuance of n....

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....sessee dated 25.08.2015 was rejected nor such stand of assessee was treated as invalid. 11. I find that jurisdictional High Court in case of PCIT vs. Devendranath G. Chaturvedi, (2017) 83 taxmann.com 141 (Guj.) held that where return of income was for blocked period filed by assessee belatedly was not discarded as invalid, in such case, if Assessing Officer wanted to frame assessment at higher income, he was bound to issue notice under section 143(2). Further, in case of PCIT vs. Marack Biosciences Limited, (2019) 106 taxmann.com 399 (Guj.) held that non-issuance of notice under section 143(2) is not a procedural irregularity and same cannot be cured under section 292BB. Hon'ble Patna High Court in CIT vs. Nagendra Prasad, (2023) 156 taxmann.com 19 (Patna) also held that where notice was issued by Assessing Officer under section 148, requiring the assessee to file return within 30 days, but return was filed after eight and a half months, since return was filed by assessee in response to said notice though delayed, there should have been a notice issued under section 143(2) as requirement of issue notice could not be dispensed with. Hon'ble Delhi High Court in case of PCIT vs. Silv....