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TMI Blog2015 (3) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... nt without complying with the statutory conditions prescribed under Section 147 read with Section 148 of the Act. 4. On the facts and circumstances of the case, the CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the reassessment proceedings are bad in law and on facts as the reasons recorded for reopening the assessment do not meet the requirements of Section 147 of the Act. 5. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the order assed by the AO despite the fact that the same has been passed without issue of statutory notice under section 143(2) of the Act. 6. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in enhancing the income of the assessee by making addition of Rs. 15.10 Crores on account of share application money as against Rs. 2.40 crores made by the AO. 7(i). On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in making addition of Rs. 15.10 crores on account of unexplained share capital. (ii) On the facts and circumstances of the case, the Ld. CIT(A) has erred both o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn filed by the assessee as unexplained share capital and AO completed the assessment on 31.12.2010 u/s. 143(3)/147 of the I.T. Act, 1961. 3. Aggrieved with the aforesaid order dated 31.12.2010, assessee filed the Appeal before the Ld. CIT(A), who impugned order dated 28.12.2012 dismissed the Appeal of the Assessee. 4. Against the aforesaid order dated 31.12.2010 passed by the Ld. CIT(A), assessee is in appeal before the Tribunal. 5. Ld. DR relied upon the order passed by the Ld. CIT(A) and stated that the Ld. First Appellate Authority has not decided the issue involved in ground no. 5 regarding non-issue of notice u/s. 143(2) of the I.T. Act, therefore, this issue may be set aside to the Ld. CIT(A) to decide the same afresh, under the law. 6. Ld. Counsel of the assessee has stated that with regard to issue involved in ground no. 5, there is no need to set aside the issue to the file of the Ld. CIT(A), because the assessee has raised this ground before the Ld. CIT(A) which is a legal ground and can be raised at any time before the Appellate Authority like the Tribunal. In support of his contention, Ld. Counsel of the assessee has referred the judgment of the Hon'ble Bombay Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2012 (Madras High Court) [2013] 90 DTR 289. - Alpine Electronics Asia Pte Ltd. vs. DGIT & Ors. [2012] 341 ITR 247 (Del.) - Raj Kumar Chawla and Ors. vs. ITO (2005) 94 ITD 1 (Del), ITAT, Special Bench, New Delhi - DCIT vs. Indian Syntans Investments (P) Ltd. [2007] 107 ITD 457. - CIT vs. M/s Panorama Builders Pvt. Ltd. in Tax Appeal NO. 435 of 2011 of Hon'ble Gujarat High Court. - CIT vs. Rajeev Sharma 336 ITR 678 of High Court of Allahabad. 7. We have heard both the counsel and perused the records, especially the orders passed by the revenue authorities alongwith the documentary evidence filed by the assessee in the shape of Paper Book in which he has attached the copies of various judgments of the Hon'ble Supreme Court and Hon'ble High Court on the legal issue in dispute. Ld. DR argued that the Ld. First Appellate Authority has not decided the issue involved in ground no. 5 regarding non-issue of notice u/s. 143(2) of the I.T. Act, therefore, this issue may be set aside to the Ld. CIT(A) to decide the same afresh, under the law. In reply Ld. Counsel of the assessee stated that there is no need to set aside the issue to the file of the Ld. CIT(A), because the assessee has ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 8.1 We have also perused the assessment order dated 31.12.2010 passed by the Assessing Officer u/s. 143(3)/147 of the I.T. Act. For the sake of convenience, we are reproducing the aforesaid assessment order as under:- "Return of income in this case was filed on 29.9.2008 declaring income of Rs. 28989/-. Assessment proceedings were initiated u/s. 147 of the I.T. Act, by issue of notice u/s. 148 on 30.3.2010. The assesse was asked to file return of income within 30 days in response to notice u/s. 148 of the I.T. Act, 1961 issued on 30.3.2010. The notice was received back unserved. Further notice u/s. 142(1) dated 21.10.2010 fixing the case for 29.10.2010 was issued. However, on 29.10.2010 the compliance was made through Sh. PK Mangal, AR of the assessee and he stated that return filed on 29.9.2008 may be treated as filed in response to notice u/s. 148 of the I.T. Act. Subsequently details as PAN, Share Application Form, Affidavit, Bank A/c copy and Balance sheet of M/s Bhavani Portfolio (P) Ltd., M/s Tejasvi Investments P Ltd. and M/s Taurus Iron and Steel Co P. Ltd., the Share Applicant Company, were filed. As per the information available, the assessee has received cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chambers, 2069/39, Naiwala Karol Bagh, New Delhi. At the time of search on 15.9.2008 in the premises of Sh. Tarun Goyal, the statement on oath of the employees present at the premises of Sh. Tarun Goyal were recorded. These include Sh. Pramod Kumar, his peon, Sh. Harpreet Singh, Accountant. In their statements they stated that they were mere employees of Sh. Tarun Goyal and they were signing various documents related to many companies at his behest, as and when asked by Sh. Tarun Goyal. The assessee company is private limited company. In the case of such companies, there is close and proximate relationship between the promoters / directors and such companies are not allowed to accept subscriptions or deposits from the general public. As such, there should have been no difficulty on the part of the assessee to produce somebody from the said entity. In the light to above discussions it is quite evidenced that the assessee has received amount of share capital / share premium of Rs. 2.40 crores from the three companies through bogus transaction, where in fact no real transactions took place. The creditworthiness and genuineness of share applicants is not proved an the assessee fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedural. If the notice is not served within the prescribed period, the assessment order is invalid Reassessment-----Notice-----Assessee intimating original return be treated as fresh return---Reassessment proceedings completed despite assessee filing affidavit denying serviced of notice under section 143(2)---- Assessing Officer not representing before Commissioner (Appeals) that notice had been issued---- Reassessment order invalid due to want of notice under section 143(2)--- Income-tax Act, 1961, ss. 143, 147, 148(1), prov.----ITO v. R.K. GUPTA [308 ITR 49 (Delhi)Tribu.," DIT vs. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATIONS in ITA 441 OF 2010 (Delhi High Court) [(2010) 323 ITR 249] "The notice u/s 143(2) was issued on 23-03-2000 while the return was filed on 27-03-2000. Even if it was issued on 27-03-2000 without examining the return, it was invalid. The notice was invalid and so was the assessment." DCIT vs. Indian Syntans Investments (P) Ltd. [(2007) 107 ITD 457 (Chennai)] "Validity of reassessment order - Non-service of notice under s.143(2) - The amended Proviso to s.148 of the Income Tax Act 1961 was not applicable in case where the assessee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was the failure on the part of the assessee in not disclosing the capital gains arising on the transfer of property for assessment and that admittedly the assessee had requested the officer to accept the original return as a return filed in response to Section 148 of the Act, we hold that there was total failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is mandatory one as held by the Apex Court." Alpine Electronics Asia Pte Ltd. vs. DGIT & Ors: [(2012) 341 ITR 247 (Del) Held: "The service of notice u/s 143(2) within the statutory time limit is mandatory and is not an inconsequential procedural requirement. Omission to issue notice u/s 143 (2) is not curable and the requirement cannot be dispensed with. S. 143(2) is applicable to proceedings u/s 147 & 148." JYOTI PAT RAM VS. ITO [(2005) 92 ITD 423 (Lucknow) - ShreeJai Shiv Shonhor Traders (P) Ltd. - A.Y. - 2008-09 "Reassessment order passed under section 143(3)/148 without issue of a valid notice under section 143(2) was illegal." CIT vs. Pawan Gupta & Ors. [(2009) 318 ITR 322 (Del) Hon'ble Delhi High Court held in Para 38 of the order observed as under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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