TaxTMI 
TaxTMI 
2024 (11) TMI 1653
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.... or to substitute the above ground(s) of appeal either before or at the time of hearing of case. 3. Briefly the facts of the case are that the assessee filed its return of income on 29/09/2012 declaring total income as NIL which was assessed under section 143(3) by JCIT, Range - 2 (Exemption), Chandigarh vide its order dt. 30/03/2015. Subsequently, the case of the assessee was reopened and notice under Section 148 was issued by ITO, Ward-4, Yamuna Nagar on 11/03/2019. In response, the assessee submitted that the return of income filed earlier under section 139 may be treated as return filed in response to notice under section 148 of the Act. Thereafter, notice under section 142(1) was issued on 26/11/2019 followed by show cause on 04/12/2019 to explain the source of cash deposited in the bank account. In response, the assessee submitted that it has been running an Engineering College during the year and had received total fees amounting to more than Rs. 5 crore during the year and fees was mostly received in cash and was deposited in the bank account from time to time. It was accordingly submitted that the cash so found deposited which has been pointed out in the notice was part....
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....as accordingly submitted that the AO has recorded incorrect factual findings while reopening the assessment proceedings that no return of income has been filed by the assessee and no response has been filed in response to enquiry conducted prior to issuance of notice. It was submitted that the same shows lack of application of mind on the part of the AO while recording the reasons and it is a settled position that where reopening has been done on incorrect or non-existent facts, the reassessment proceedings cannot be sustained and deserves to be set aside and in support, reliance was placed on the decision of Hon'ble Punjab & Haryana High Court in case of CIT vs. Atlas Cycle Industries(1989) 180 ITR 319, Coordinate Chandigarh Benches decision in case of Baba Kartar Sing Dukki Educational Trust (ITA No. 444 to 446/Chd/2014 dt. 29/05/2015) and in case of Gunjan Arora Vs. ITO (ITA No. 450/Chd/2023 dt. 15/05/2024). 7. It was further submitted that assessment for the impugned assessment year 2012-13 has been reopened by issuing notice under section 148 on 11/03/2019 i.e beyond 4 years from end of the relevant assessment year and as per the proviso to Section 147 where the assessment ....
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.... explanation was submitted by the assessee in response to notice under section 133(6), the AO has rightly assumed jurisdiction under section 147 of the Act. Further, he relied on the orders of the lower authorities. 9. We have heard the rival contentions and purused the material available on record. In the instant case, the action of the AO in acquiring jurisdiction u/s 147 has been challenged by the assessee on two counts. Firstly, it has been contended that the AO while recording the reasons has incorrectly stated that the assessee has not filed the return of income and hence, the deposits in the bank account couldn't be verified leading to escapement of income. In this regard, we find that the assessee has filed its original return of income on 29/09/2012 which has been selected for scrutiny by issuance of notice u/s 143(2) and the assessment order has been passed u/s 143(3) dated 30/03/2015. The copy of the return of income and the original assessment order passed u/s 143(3) has been placed as part of the assessee's paperbook. Further, the said fact has been duly acknowledged by the AO at the beginning of the reassessment order passed u/s 144 r/w 148 dated 21/12/2019 where t....
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....drawn that there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. We find that similar matter came up for consideration before the Hon'ble Punjab and Haryana High Court in case of Duli Chand Singhania vs. Asst. CIT (supra) wherein it was held that the absence of a finding to this effect which is a "sine qua non" for assuming jurisdiction under section 147 in a case falling under the proviso thereto, makes the action taken by the AO wholly without jurisdiction. 11. In the instant case, we refer to the reasons so recorded by the AO before issuance of notice u/s 148 of the Act and find that the AO has talked about the fact that the assessee has not filed its return of income which, as we have seen earlier, is an incorrect finding as the assessee has duly filed its return of income. Secondly, the AO has talked about the fact that the assessee has not responded to the notice u/s 133(6) seeking information about the source of cash deposit which again, as we have noted above, is factually incorrect as the assessee has duly responded to the notice vide letter dated 19/12/2019. We further note that the AO in the reasons....