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2015 (10) TMI 1480 - ITAT MUMBAI

2015 (10) TMI 1480 - ITAT MUMBAI - [2015] 40 ITR (Trib) 35 (ITAT [Mum]) - Reopening of assessment - proceedings initiated without a valid notice - Held that:- We are conscious that the apex court in Pooran Mal v. Director of Inspection (Investigation) [1973 (12) TMI 2 - SUPREME Court] clarified that the test of admissibility of evidence under the Indian jurisprudence lies in its relevance, so that even materials or information found during or as a result of an illegal search could also be put to .....

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ated without a valid notice under section 148(1) cannot be recognised in the eye of the law. - Decided in favour of assessee - I.T.A. No. 6213/Mum/2011 - Dated:- 18-3-2015 - SHRI SANJAY ARORA AND SHRI AMIT SHUKLA, JJ. For the Appellant : Shri Akhilendra Yadav For the Respondent : Shri Firoz Andhiyarjina & Shri Laxmikant Kothari ORDER Sanjay Arora (Accountant Member).- This is an appeal by the Revenue directed against the order by the Commissioner of Income-tax (Appeals)-I, Mumbai ('CIT(A .....

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ing quashed the said proceedings on the basis that the said notice is bad in law. Cases of the respective parties 3. The assessee's case, which found acceptance by the learned Commissioner of Income-tax (Appeals), is that the impugned notice under section 148 cannot be considered as valid for want of satisfaction of the condition of section 148(2) inasmuch as the reason/s for its issue were recorded on March 31, 2010 (copy on record). Clearly, therefore, the same cannot form the basis for th .....

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sued without recording the reasons for the same. 4. We have heard the parties, and perused the material on record. The assessment proceedings in the instant case were initiated vide notice under section 148 dated March 30, 2010. This is borne out of the fact of not only the notice (copy on record) being dated March 30, 2010, but also the said date subscribed thereto by the Assessing Officer in his hand below his signature thereon, signifying that the said notice was not only processed, but also .....

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ing signed by him on March 31, 2010, i.e., the date subscribed to the sheet recording the same. This is why an affidavit by the Assessing Officer to the effect that the reason/s were in fact dictated on March 30, 2010, sought to be placed on record by the learned Departmental representative (DR), was considered irrelevant and, accordingly, denied permission by the Bench during hearing. The same rather proves the assessee's case against the Revenue's action. It is only upon affixing his s .....

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n satisfaction of the mandate of section 148(2). The law, as per section 148(2), does not stipulate a procedural requirement of satisfaction by the Assessing Officer (as to escapement of income), but that of recording of the reason/s to believe, and before the issue of notice under section 148(1). Again, the assumption of jurisdiction for assessment under section 147 is by issue of notice under section 148, and not its service (R. K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC)) which .....

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. What has been served on March 31, 2010, a matter subsequent, is not a legally valid notice, so that its service is of no consequence in law. The same, i.e., a valid assumption of jurisdiction under section 147, is, accordingly, missing in the present case. True, the notice under section 148, if signed by the Assessing Officer on March 31, 2010 instead of March 30, 2010, i.e., a day later, would have conferred validity to its issue and, resultantly, to the reassessment proceedings. The same may .....

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