TaxTMI 
TaxTMI 
2018 (10) TMI 2043
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....assessee is an individual filed his return of income for the assessment year 2010-11 on 17th March 2011, declaring total income of Rs. 4,97,190. The return of income was processed under section 143(1) of the Income Tax Act, 1961 (for short "the Act"). Thereafter, the case has been re-opened under section 147 of the Act. On the basis of assessment proceedings of Gurudas Sukrit Barde, wherein it was found that the assessee has purchased agricultural land on 5th June 2009, from Gurudas Sukrit Barde, and three other family members for an amount of Rs. 5,34,600. It was, therefore, noticed that Shri Gurudas Sukrit Barde, in his assessment, stated that the source for cash deposits in the bank account is out of sale proceeds received from Shri Ajay Singh, Shri Gajanand Singh Gaur. Accordingly, notice under section 148 of the Act, was served on the assessee. In response to the notice, the assessee filed his return of income on 3rd October 2013, declaring total income of Rs. 4,97,190, by making additions towards difference in amount paid for purchase of land of Rs. 23,11,500. The relevant observations of the Assessing Officer are extracted below:- "9. The assessee was asked to submit the d....
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....ts. The Assessing Officer, vide his remand report dated 6th January 2017, admitted the fact that notice under section 143(2) of the Act was not issued to the assessee. However, he further commented on the issue by stating that as per the provisions of section 148 of the Act, the requirement of issue of notice under section 143(2) of the Act is not mandatory when the assessee has not filed his return of income within the time allowed under notice issued under section 148 of the Act and when the assessee has actively participated in the assessment proceedings in response to various show cause notices. The learned Commissioner (Appeals) confronted the remand report of the Assessing Officer to the assessee for his comments for which the assessee has vehemently argued that non-issuance of notice under section 143(2) of the Act cannot be cured by provisions of section 292BB of the Act, as the issuance of notice is mandatory before taking up a case for assessment when the Assessing Officer is not satisfied with the income declared by the assessee in his return of income. In this regard, he relied upon the decision of the Hon'ble Delhi High Court in PCIT v/s Jai Shiv Shankar Traders Pvt. L....
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....s the basic jurisdiction to assess the income in terms of section 147 & section 148 of the Act where he has reason to belief that the income has escaped assessment. On the submissions of non- issuance of notice u/s 143(2) of the Act, we are of the view that the findings of the Tribunal in this regard are not as per the scheme of the provisions of sections 147 and 148 of the Act. 13. Though no specific notice was required u/s 143(2) of the Act, as noted above, the questionnaire dated November 11, 2003 and January 21, 2004, provided the assessee specific opportunity to support his return by seeking documentary evidence and details in regard to the following query:- "As per the return, interest of Rs. 93,81,222 was received by you during the year, which is adjusted against pre-operative expenses. The interest income should be charged." 6.1 In the instant appeal, facts of above mentioned decision of Hon'ble Delhi High Court are found squarely applicable. The appellant has been issued various notices u/s 142(1) & letters asking him to give details and source of cash payment made against the purchase of land along with supporting evidences thereof after issue of first notice u/s....
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.... learned Authorised Representative further submitted that the learned Commissioner (Appeals) having accepted the fact that no notice under section 143(2) of the Act has been issued, failed to appreciate the fact that the assessment order passed by the Assessing Officer is bad in law. when the assessee has filed return of income in response to notice under section 148 of the Act. In this regard, he relied upon the decision of the Hon'ble Supreme Court in ACIT v/s Hotel Blue Moon, [2018] 169 DTR 179 (SC). 5. Learned Departmental Representative strongly supporting the order of the learned Commissioner (Appeals) submitted that when the assessee has consciously and intentionally forgone his rights of challenging the notice before the Assessing Officer by actively participating in the assessment proceedings, then, non-service of notice or non-issuance of notice cannot be questioned at the appellate stages. Learned Departmental Representative further submitted that the learned Commissioner (Appeals) has elaborately discussed the issue in the light of the decision of the Hon'ble Delhi High Court in the case of Madhya Bharat India Corporation Ltd. (supra), wherein it was held that the ....