TaxTMI 
TaxTMI 
2022 (4) TMI 1697
X X X X Extracts X X X X
X X X X Extracts X X X X
.... follows:- "8(c) Whether any voluntary return had already been filed - NO "8(d) If so, the date of filing of the said Return - NA Which is on the erroneous footing and factually incorrect. The Return of Income of A.Y. 2009-10 stands filed on 18.07.2009. (PB Pg. 18/1). Also mentioned in the impugned Assessment Order itself u/s 147/143(3) dt 10.03.2016, "Return of Income was filed by the Assessee on 18.07.2009...". The entire Reasoning thus proceeded on the wrong premises that the Assessee has never filed the Return of Income. The Proceeding Initiated u/s 147 are Void-ab-intio, wrong, Illegal and Bad in law. The consequential Assessment Order passed u/s 147/143(3) of the I.T. Act is liable....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ermal Power Co. Ltd. vs. CIT (Supra), we observe that since the ground sought to be agitated by the assessee before this Tribunal is legal ground, which goes to the root of the matter, challenging the assumption of jurisdiction by the Assessing Officer for issuance of notice u/s. 148 and framing reassessment order u/s. 147 of the Act, therefore, same can be considered and admitted for hearing by this Tribunal at this belated stage. Therefore, respectfully following the judgment of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT (supra), the additional ground No. 17, being legal, is admitted for consideration and hearing. 5. We have heard the arguments of both the sides. Learned AR of the assessee, drawing our....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e and therefore, income has escaped assessment, then it has to be held that the reassessment proceedings are not in accordance with law and thus, the same has to be quashed. Learned AR vehemently pointed out that when the assessee filed return of income, which was noted by the Assessing Officer in the reassessment order, then initiation of reassessment proceedings u/s. 147 of the Act and issuance of notice u/s. 148 of the Act has to be held as without application of mind and by considering wrong and incorrect facts and therefore, initiation of reassessment proceedings, notice u/s. 147 and reassessment order u/s. 147 read with section 143(3) of the Act has to be quashed. 8. Replying to the above, ld. CIT/DR strongly supported the action o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iation of re-assessment proceeding u/s. 147 and notice u/s. 148 of the Act has to be held as bad in law and not sustainable, as the Assessing Officer has taken into consideration incorrect and irrelevant facts at the time of taking action u/s. 147 and 148 of the Act and thus, we safely presume that the Assessing Officer has not applied his mind to the assessment file of the assessee before initiating reassessment proceedings. 10. In the similar set of facts and circumstances, ITAT Delhi 'C' Bench in the case of Hafizuddin Hazi vs. ITO (supra) quashed the initiation of reassessment proceedings u/s. 147 and notice u/s. 148 of the Act. Relevant part of the said order of ITAT Delhi reads as follows : "19. We have heard the rival arg....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be quashed. For this proposition, we rely on the decision of the Hon'ble Delhi High Court in the case of PCIT vs. RMG Polyvinyal (I) Ltd. (supra), and the decision of the Hon'ble Gujarat High Court in the case of Vijay Haishchandra Patel vs. ITO (supra) relied on by the ld. Counsel for the assessee. The various other decisions relied on by the ld. Counsel on this issue also support his case to the proposition that when reopening was based on the premise that the assessee has not filed his return of income as per database of the Department, but, the assessee has actually filed the return of income, then, such reopening is not in accordance with the law and has to be quashed since such reopening was based on wrong facts. We, therefore, quash....