TMI Blog2019 (4) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, there is no infirmity in the order of the CIT(A) in deleting the addition of ₹ 55.00 lacs. Similarly with regard to ₹ 11.00 lacs, the CIT(A) found that the assessee has received a cheque from his brother Shri Satya Narain which is duly verifiable from the bank statement of Shri Satya Narain who has issued cheque to the assessee on 24/3/2007. The assessee has also filed confirmation from his brother Shri Satya Narain. Detailed findings so recorded by the CIT(A) with regard to receipt of ₹ 11.00 lacs by the assessee from his brother through account payee cheque and confirmation have been filed by the brother has not been controverted by the DR by bringing any positive material on record. Accordingly, we do not find any infirmity or illegality in the impugned order of the CIT(A) in deleting the addition of ₹ 11.00 lacs. Since the additions have been deleted by the CIT(A) after giving proper opportunity to the A.O. and calling a remand report, there is no contravention of Rule 46A of the IT Rules. The total addition of ₹ 66.00 lacs (55,00,000/- + 11,00,000/-) so deleted by the CIT(A) are correct. Reopening of assessment - no service of noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the assessee had purchased an immoveable property and in absence of any return, source was not verifiable. In response to notice u/s 148, the appellant had filed his return declaring income from agriculture and bank interest. The assessee alongwith his three brothers had sold two agricultural lands admeasuring 40.30 Bighas for ₹ 6.80 Crores (in which share of the appellant is ₹ 1.70 Crore but valued by registering authority at ₹ 8.02 Crores in which share of the assessee is calculated at ₹ 2,00,50,000) and reinvested for purchase of agricultural lands as well as for purchase of residential house. Since as per opinion of the assessee the said lands were not capital assets u/s 2(14) of the Act and hence no such transaction of sale of agricultural lands was shown in the return filed in pursuance to notice u/s 148. During the assessment proceedings the AO not convinced with the arguments and submissions taxed the capital gain by curtailing eligible deductions to the assessee u/s 54B and u/s 54F of the Act. During the reassessment proceedings, the A.O. found that out of the sale proceeds, the assessee acquired residential house for which deduction was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the A.O. made addition of ₹ 81.00 lacs to the income of the assessee on account of unexplained credits (including cash deposit of ₹ 15 lacs) in the bank account of the assessee as per the following details: 26/07/2006 to 29/09/2006 (cash deposits) ₹ 15.00 lacs 16/03/2007 ₹ 55.00 lacs 24/03/2007 ₹ 11.00 lacs 7. Against the order of the A.O. in appeal filed appeal before the ld. CIT(A), the assessee filed additional evidence. The ld. CIT(A) called for the remand report and also rejoinder of the assessee on the same. After considering the remand report, the ld. CIT(A) deleted the addition of ₹ 66.00 lacs after observing as under: Credit entry of ₹ 55 lac on 16.03.2007 (iv) Regarding credit entry of ₹ 55 lac on 16.03.2007, it was submitted that the appellant had received a sum of ₹ 55 lac from M/s. Megha Colonisers as advance against sale of its agricultural land which was registered on 19.05.2007 and as per the said sale deed at page 4, it has been stated that the appellant had received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the ld. CIT(A) has already called for a rejoinder. A categorical finding has been recorded by the ld. CIT(A) after considering the remand report, to the effect that the assessee has received a cheque of ₹ 55.00 lacs from M/s Megha Colonizers which was deposited in his bank account maintained with OBC bank on 16/3/2007. The confirmation of M/s Megha Colonizers was also filed before the lower authorities. Accordingly, there is no infirmity in the order of the ld. CIT(A) in deleting the addition of ₹ 55.00 lacs. 10. Similarly with regard to ₹ 11.00 lacs, the ld. CIT(A) found that the assessee has received a cheque from his brother Shri Satya Narain which is duly verifiable from the bank statement of Shri Satya Narain who has issued cheque to the assessee on 24/3/2007. The assessee has also filed confirmation from his brother Shri Satya Narain. Detailed findings so recorded by the ld. CIT(A) with regard to receipt of ₹ 11.00 lacs by the assessee from his brother through account payee cheque and confirmation have been filed by the brother has not been controverted by the ld. DR by bringing any positive material on record. Accordingly, we do not find any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce U/s 143(2) of the Act. In this regard, the ld AR has drawn our attention to page 1-2 of paper book containing acknowledgment of return filed with ITO ward 3(1), Jaipur on 13th March, 2015 for the A.Y. 2007-08. Since it is a purely legal issue, it can be admitted at Tribunal level for the first time in terms of decision of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs CIT (1998) 97 Taxman 358 (SC). During the course of hearing on 16/10/2017, the ld DR was directed to produce the assessment records and to furnish evidence of service of notice U/s 143(2) of the Act. The case was again fixed for hearing on 19/09/2018, however, the department could not place any evidence on record to substantiate the issue and service of notice U/s 143(2) of the Act. Appeals were finally fixed for hearing on 25/3/2019 and the ld. DR was specifically asked to substantiate the issue and service of notice U/s 143(2), but noting could be produced by the ld DR. Exactly Similar issue under identical facts and circumstances have been decided by the Bench in the case of assessee s brother Shri Hansraj Sharma in ITA No. 504/JP/2016, wherein following reasoning have been given: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs P Ltd. v/s ACIT 390 ITR 167 (Kerela HC): Omission to issue notice u/s 143(2) is incurable defect even u/s 292BB of the Income Tax Act, 1961. (iv) PCIT - 08 v/s Jai Shiv Shankar Traders P Ltd. 383 ITR 448 (Delhi): Issue of notice u/s 143(2) is not a procedural requirement and is mandatory and completion of assessment without issue of notice u/s 143(2) is fatal to the assessment. In this case return was filed after issuance of notice u/s 142(1) and since no notice was issued u/s 143(2) the assessment was held to be invalid. (v) ITO v/s Neeraj Goel (ITAT Delhi Bench SMC) : Assumption of jurisdiction to frame an assessment or non-assumption of jurisdiction to frame an assessment goes to the root of the judicial act of framing an assessment order and in event of non-assumption of jurisdiction u/s 143(2) of the Act to frame an assessment the act of the assessing officer in framing an assessment order without issuing notice u/s 143(2) cannot be saved under the provisions of section 292B of the IT Act, 1961 or under section 292BB of the IT Act, 1961 and therefore the assessment order so framed will be void ab initio. (vi) Kamla Devi Sharma v/s ITO (ITAT, Jaipur Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
