TMI Blog2014 (7) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... JCIT and the notice u/s 148 was served on the son of assessee, Shri Devang Sachdev - the reasons recorded by the AO while reopening the assessment proceedings u/s 147 were communicated to the assessee and the assessee could not file any objection - the assessee was from the very beginning aware of all the developments - department has served the notice by affixture at the last known address of the assessee and copy of the panchnama was filed before the CIT(A) by the AO - There is no material to doubt the genuineness of the panchnama regarding service of notices - there is no mistake in the order of the CIT(A) on the issue that the grounds of the appeal are meaningless and dismissed as raised without any basis, and the notices were validly served as stated by the AO in the remand report and the orders have also been served as detailed in the orders of the CIT(A). It is not a case where the assessee was not given opportunity to prove the source of credit entries by the AO and the CIT(A) - The assessee has not even filed confirmation letters from most of the creditors - the onus is on the assessee to prove the identity and credit-worthiness of the creditors and also genuineness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no such tangible material on record. 5a, In not appreciating the fact that there Is no application of mind either by Assessing Officer or by his concerned appropriate authority u/s.151 before issuing any notice u/s.148 and/or before giving any approval- It is prayed that Explanation-2 of section 148 Is not applicable to the facts and circumstances of the case, therefore, notice u/s.148 qua approval Is bade in law. 6. In not appreciating the facts that the reopening cannot be made merely on the basis of Information received in subsequent assessment year and that in our case the reopening has been made taking base of Asst. Year 1998-99 is itself bad in law and void abinitio. 7. In not appreciating the fact that even otherwise no addition can be made to the extent of opening balance carried forward In reference to cash credit, 8. In not appreciating the fact that to the extent of confirmation as well as PAN filed, there cannot be any addition to these credits. Again this shows non-application of mind. 9. In not appreciating the fact that the repayment has been made to various parties and there is no evidence that money came back to the assessee, therefore, no addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the service of the notice u/s.148 is itself bad in law, void ab-initio, illegal and liable to be quashed. 3a. It is prayed that even notice u/s.143(2) has not been served to the assessee and/or to authorized person, and as such, the proceedings u/s.143(2)/143(3)/148 is itself bad in law, void ab-initio and liable to be quashed. 4. In not appreciating the fact that as per the reasons recorded, 148 notice was In reference to the amount of ₹ 1,54,500/- and not in reference to the amount of addition made worth ₹ 1,30,90,237/- and as such addition to the extent of ₹ 1,30,90,237/- is bad in law and Illegal. 5. In not appreciating the fact that even otherwise the assessment framed beyond 4 years is Itself bad in law, void ab-initio and illegal though the intimation u/s.143(1)(a) dated 05.09.1996 has been passed. There is no such tangible material on record. 5a. In not appreciating the fact that there Is no application of mind either by Assessing Officer or by his concerned appropriate authority u/s.151 before issuing any notice u/s.148 and/or before giving any approval- It is prayed that Explanation-2 of section 148 Is not applicable to the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by such default. 3. The learned counsel for the assessee submitted that this is third round of litigation before the Tribunal. He submitted that the CIT(A) in the impugned order has refused to condone the delay in filing the appeal before him and has dismissed the appeal on this ground. Further, the learned CIT(A) has decided the matter on its merits and has dismissed both the appeals of the assessee on merits also. 4. The learned counsel for the assessee submitted that there was in fact no delay in filing the appeal before the CIT(A) against the assessment orders in this case. He submitted that the assessee lives in UK since last so many years and the assessment orders are dated 26.12.2008. The AO has served the assessment order per affixture on 2.1.2009. He submitted that the assessee could not get the assessment orders per affixture, and therefore, the date of service should be taken as 10.12.2009 on which the copies of the orders were served on the assessee. He submitted that the appeals were filed before the CIT(A) on 18.2.2010. He submitted that on date of affixture of the assessment orders on 2.1.2009, the assessee was in UK, and therefore, was not aware of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has got the orders set aside from the ITAT with the promise that he would cooperate in the assessment proceedings and instead of cooperating by filing details, the assessee has not even attended and not even received orders. In these facts, the appeals were dismissed as time barred by the CIT(A). We find that even before us no reason for the delay in filing the appeal before the CIT(A) by more than one year could be given on behalf of the assessee. We find that there is no reason to disbelieve the panchnama dated 2.1.2009 in support of the claim of the department that the both the assessment orders were served by affixture on 2.1.2009, after the assessment orders were dispatched by speed post on 31.12.2008, and were received back by the department from the postal authorities. In these facts of the case, we hold that the CIT(A) has validly dismissed the appeals before him as barred by limitation. We hold accordingly. 6. Further, we find that the CIT(A) has recorded in his appellate order that this being third round of appeal, as the ITAT has set aside the appeals on two earlier occasions, and therefore, the appeals were considered on merits also by the CIT(A) and the CIT(A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Commissioner of Incometax, 258 ITR 317 (Delhi), x) Commissioner of Income-tax, Delhi X v. Atul Jain, 212 CTR 42 (Delhi) 8. The learned DR has opposed the submission of the learned counsel for the assessee. He submitted that the CIT(A) has passed a well reasoned order while holding that the action under section 147 was rightly taken in this case. He relied on the orders of the AO and the CIT(A) and also series of decisions of the Hon ble Courts in support of the case of the Department. 9. We have considered rival submissions and have perused the orders of the AO and the CIT(A). We find that on the legal issues of validity of reopening of the assessment proceedings under section 147, the CIT(A) has passed a well reasoned speaking order on this issue. In this case, the assessments for Asstt.Years 1994-95 and 1995-1996 were reopened under section 147 with prior approval of the JCIT and the notice under section 148 was served on the son of assessee, Shri Devang Sachdev. In reply to notice under section 148, a letter dated 31.5.2001 was filed by the authorized representative requesting to treat the return of income filed on 31.12.1994 as return filed in response to notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operate with the department in the matter of finalization of its assessment, and the Tribunal in earlier occasions on the basis of the assurance given in the form of affidavit of the assessee, restored the matter to the AO and gave fresh opportunity to the assessee to prove its case in the interest of justice. We find that the Tribunal in the second round of litigation before it vide its order dated 10.12.2004 while disposing of the ITA Nos.2418 2419/Ahd/2004 has recorded as under: 3. We have considered the rival contentions and found from the record that due to the absence of the assessee from India, the creditors did not cooperate in furnishing the detailed information and documentary evidences called by the lower authorities. Now by furnishing the affidavit dated 8.11.2004, the assessee has solemnly affirmed duly witnessed by the solicitor of London, and assured that during fresh period of limitation, he will come to India and will be able to submit various details before the AO. 4. In view of the above and in the interest of justice and fair play, we restore the matter to the file of AO for deciding the issue afresh. The assessee is also directed to contact the AO with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. 11. We further hold that the issue that the assessment framed under section 147 should not go beyond the reasons recorded, has to be decided against the assessee, as it is well settled that once the assessment is validly reopened, it is open to the AO to go into the entire assessment. We find that the CIT(A) has recorded a number of decisions of the Hon ble Courts on this issue while holding that the order of the assessments in this case were validly framed. There being no mistake in the order of the CIT(A) on this issue, we confirm the order of the CIT(A) and this issue is also decided against the assessee. 12. This leaves us to the only issue on the merits of the additions made by the AO for both Asstt.Years 1994-95 and 1995-1996. We find that the learned counsel for the assessee at the outset submitted that he has not prepared on the merits of the additions made by the AO and confirmed by the CIT(A). In reply to the query from the Bench that why he was not submitting any arguments on the merits of the case or why he has not prepared, the learned counsel for the assessee could not give any reasons whatsoever. We find that it is third round of litigation before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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