TMI Blog2013 (6) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... oposal was sent for AY 2001-02 but notice was issued for AY 2000-01. One factor which support the contention of the Revenue authorities that it is typographical error is that the total income stated against that column is the income returned by assessee for AY 2000-01. So there seems to be some mistake on the part of AO which was compounded by the approval letter of the JCIT for the same AY but when assessee is challenging the same in various proceedings including the writ petitions before the Hon'ble High Court, one cannot ignore the fact that the year of the assessment was mentioned as AY 2001-02 and not AY 2000-01. Therefore, two reasons i.e. the year of selection was wrong and the notice served on assessee was issued prior to the actual approval by the JCIT are to be taken into consideration. Even though the names mentioned in the report was also wrongly spelt at various places, it is not material for deciding the issue as the notice was issued to assessee on 21.10.2002 i.e. before getting approval from the JCIT. On this reason alone the issuance of notice has to be held bad in law. Since assessee's contentions on jurisdiction are accepted, there is no need to adjudicate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult of this I was kept in prison as an under trial prisoner from 30-6-2000 to 20-6-200l. Hon'ble Thane Session Court acquitted me from al the charges. I hope that you will understand the mental state of affair under which I had gone. It is very true that I have serious disputes with Lalit Construction and hence I had filed various Civil/Criminal cases against Lalit Construction and others. I further state that Lalit Construction had fabricated the labour bills. It is incorrect to say that the payment made to Lalit Construction was not for business purpose. In order to entitle for deduction "Business Loss" the assessee should show the nexus with the business, which I had proved beyond reasonable doubt". 3. As can be seen from the above submissions, at the relevant point of time assessee was not in a position to file the return and filed the return belatedly on 12.12.2001. This return was accompanied by the audit report dated 25.11.2001. Assessee received a notice under section 143(2) dated 21.10.2002 issued statutorily by AO for selection of scrutiny. Subsequently, the assessment was completed by the then Asstt. Commissioner of Income Tax determining the total income at Rs.1,09, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CIT (A) were considered in detail by the CIT(A). While not accepting the issues on jurisdiction, he considered the issues on merits and gave partial relief by deleting the additions made with reference to Vasundhara Construction of Rs.10.00 lakhs, addition of Rs.1.00 lakhs out of labour charges which were contested by the Revenue in their appeal. With reference to the claim of loss of payment to M/s Lalith Constructions, the learned CIT (A) directed AO to allow the loss in the year of crystallization of loss. Accordingly, the Revenue is also aggrieved on that direction. 5. In assessee's appeal, assessee raised detailed submissions as grounds. The original grounds of appeal run to six pages on various issues having 12 paras with sub paras. Subsequently, revised grounds of appeal were filed which has three pages with 23 paras. Later, re-revised grounds were filed which has 25 paras running to 4 pages. After some police investigations in assessee allegations, fresh grounds in the light of findings of police investigation in addition to earlier grounds were also raised vide Paras F1 to F8 and prayer in paras A,B,C,D,E. Assessee also filed written arguments, along with pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Best Plastic (P) Ltd (Circulars are binding on officers of I. T.) 19 112 26 Xerox copy of CIT v. Best Plastic Ltd. (295 ITR 256) (Circulars are binding on officers of I. T.) 20 113-113A 27 Xerox copy of CIT v. Kurban Hussain Ibrahimji (1972) 4 SCC 394 (Validity of notice 21 114-114A 28 Xerox copy ofUco Bank v. CIT (1999) 237 ITR 889 (SC) (Circulars are binding on officers of I.T. 22 115-128 29 Xerox copy of Uco Bank v. CIT [1999] 237 ITR 889 (SC) (Instruction Circulars are binding on officers of I. T.) 23 129-136 30 Xerox copy of CIT v. IOCL Ltd. (2004) 267 ITR 272 (SC) (Circulars are binding on officers of I. T) 24 137-150 31 Xerox copy of Tanna Modi v. CIT Mumbai XXV and Ors on 17 May, 2007 (Fraud) 25 151-156 32 Xerox copy of 2002 AIR SCW 4939 (Interpretation of Statutes -only in case of ambiguity, inconsistency or obscurity.) 26 157-159 33 Xerox copy of Police Report 27 160-165 6. The chronology of events as given by assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court set aside order on MA and formed special bench to hear afresh 21 11.6.07 MA No.166/Mum/06 to expunge the remark of fabrication dismissed by ITAT 22 24.7.07 MA No.411/Mum/05 to expunge the remark of fabrication dismissed by ITAT 23 24.06.08 In W.P. No.3624/2008 Hon'ble Bombay High Court gave liberty to challenge notice dated 21.10.02 under section 143(2) 24 13.05.09 Office Supdt. Letter shows that the approval records were fabricated 25 11.06.09 ACIT letter shows that neither my name nor AY 2000-2001 contain in correspondences for approval 26 8.10.09 Police filed interim report in learned 24th A.C.M.M. Court stating ACIT A.K. Gowada, JCIT A.B. Joshi and CIT (A) Pomela Prasad Committed offences under various sections of IPC. 27 8.8.11 Accused A.K. Gowada filed criminal application to squash criminal proceedings in learned A.C.M.M. Court. The Hon'ble High Court dismissed the application and ordered learned Magistrate to proceed in accordance with law. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th November 2011, of Mr. M.H. Patel, is that the Sr. Departmental Representative, Mr. P.C. Mourya, has obstructed administration of justice, which would amount to criminal contempt within the meaning of Contempt of Courts Act, 1971, for the reason that he filed an application dated 25th October 2011, seeking adjournment on the ground that he is proceeding on leave and that he would be back on 21st November 2011. It is argued that the Sr. D.R. is trying to drag the hearing. The Sr. D.R., Mr. P.C. Mourya, submitted that for hearing on 14th November 2011, be requested for adjournment well in advance on 25th October 2011, as he had to proceed on leave. He further submitted that going on leave which has been sanctioned to him, cannot be considered obstruction of administration of justice. After hearing rival contentions, we find that the learned Departmental Representative has applied for adjournment well in advance, as leave has been sanctioned to him. The Vice President, Mumbai Zone, directed that the case be fixed for hearing on 29th November 2011, in view of the request. In other words, the request for adjournment was granted and the case was posted within 15 days. Under thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACIT-24(2) was bad in law and was issued without prior approval of the JCIT and was not accompanied by the notice under section 142(1) and is a mechanical exercise of power by AO, which is legally bad in law, void and beyond jurisdiction and is violative of the Board circular on the issue. The written submissions on the issue placed in the paper book by assessee are as under:- Written submission by assessee: "1] Please refer to page 3 to 8. The ACIT vide letter dated 21-10-2002 sought approval of additional list of cases proposed to be scrutinized from JCIT. This list contains 101names of assessees. This list neither contains my name nor A. Y. 2000-01. 2] Please refer to page 9 to 12. The JCIT vide letter dated 23-10-2002 approved additional list of cases as proposed by ACIT. It is surprisingly noted by applicant that this list contains 51 names of assessee whereas the letter clearly state that the list proposed by ACIT is approved. No reason/s was/were given by JCIT. This list neither contains my name nor A. Y. 2000- 01. From this inferences can be drawn that the ACIT Mr. A. K. Gowada and Mr. A. B. Joshi as a part of criminal conspiracy and as a part of corrupt extortion pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction no. 1851, dated 8-08-1990. The instruction(s) of C. B. D. T. are binding on I. T. officers. Further in support of this argument I rely on (2000) 164 CTR 341: (2001)115 Taxman 575: (2000) 245 ITR 340 (MP) in case of CIT v. Ladharam Lakhimal. 7] In Writ Petition no. 3624 of 2008 the Hon'ble Bombay High Court gave liberty to raise issuance of notice without prior approval in the pending appeal before ITAT Appeal no. 6359/M/06. 8] It appears that the ACIT 24 (2) has not filed this appeal under the direction of CIT Range 24 as required U/s 253 (2) of Income Tax Act 1961. The entire record in this connection be called for looking into criminal back grounds of I.T. Officers being mastermind in fabricating the records. The appeal is filed without jurisdiction. The appeal be dismissed with cost being not maintainable. In this connection I rely on 2002 AIR SCW 4939. 2] The CIT (Appeals) XXIV passed appellate order on 18- 09-2006 and it appears that the appeal is filed on 30-11- 2006. The actual date of filing the appeal be verified as it may be filed even on latter date. It also appears that no application for condonation of delay is filed. The appeal is bar by the law of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs as provided u/s.143(2)(ii), thus the return furnished by me become final and binding on I. T. Authority. 2) The notice u/s.143(2) dated 21-10-2002 was issued without prior approval of J. C.I. T. and hence bad in law, ultra virus and not tenable in law. 5.2 During the course of appellate proceeding, the appellant has made following submissions on these grounds :- "1] The Original notice u/s.143(2) dated 21-10-2002 issued by AC.I.T.24(2) to me, without serving notice u/s.142(1). The notice u/s.143(2) dated 21-10-2002 issued by AC.I. T.24(2) is annexed and marked as Exhibit 3. The notice u/s.142(1) dated 7-7-2005 (which has hand written remarks which shows that he was pre-determined) issued by AC.I. T.24(2) to me, without serving notice u/s.142(1). The notice u/s.142(1) dated 7-7-2005) is annexed and marked as Exhibit 4. Both the notices were mere notices which do not contains any details of accounts and or particulars to be produced as required u/s.143(2)(i) and 143(2)(ii), which are obligatory on the part of AO., under law, thus said notice is a mechanical exercise of power by A. 0., which is illegal, bad in law, void and beyond jurisdiction. No other notice/notices were se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant might rely in support of the return. This was perfectly worded in accordance with the provisions of section 143(2). There is no provisions u/s.143(2) to call for specific details or particulars. The powers to call for specific details and particulars are given u/s.142(1) of the Income-tax Act, 1961. It is not necessary that the notice u/s.142(1) calling for specific details and particulars should also be served along with notice under section 143(2). The validity of an assessment will not be vitiated even if no notice under section 142(1) is issued during the course of assessment proceedings. Further, there is no requirement of law that the notice u/s.143(2) should be issued only after the prior approval of the Jt.CIT. Sometimes, such approvals are obtained only for administrative reasons. The CBOT Instruction dated 28/06/2002 relied upon by the appellant is applicable to limited scrutiny u/s.143(2)(i). This Instruction is not applicable to the case of the appellant as it was not a case of limited scrutiny. Moreover, it is seen from the order sheet of the assessment record that the notice u/s.143(2) was issued in this case with the approval of the Jt.CIT, Range-24(2), comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 171 ITR 381 (Raj.) (1988) c) UCO Bank vs. CIT 237 ITR 889 (S.C) (1999) d) CIT vs. IOL 272 ITR 261 (S.C) (2004) e) S.C. Tanna and Modi Others vs CIT (2007) f) Tamil Nadu Industrial Corporation Ltd. g) CIT vs. T.S. Thakur 295 ITR 256 (Del.) (2007). We do not propose to discuss legal propositions here in this order. 16. The above findings are given, without prejudice to the contentions raised by assessee and the arguments raised against the Department/ officers in various other proceedings. This order is not to be taken as the basis for or against the rival parties in any other proceedings as this issue was decided only for the Income Tax proceedings for adjudicating the matter before us. As reported briefly, there are various criminal complaints filed by assessee not only against the Departmental Officers but also against other parties. Therefore, we make it clear that this order should not be taken as a basis for deciding any other issues other than the matter placed before us for adjudication. With these observations, we hold that selection of the case by AO suffers from procedural lapses and accordingly the notices issued under section 143(2) dated 21.10.2002 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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