TMI Blog2016 (6) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... AMBLE, JUDICIAL MEMBER For The Appellant : Sh. Raman Kant Garg, SR. DR For The Respondent : Sh. Amit Goel and Sh. Saurabh Goel, CAs ORDER PER BENCH Theses appeals and cross objections are filed against the orders dated 14/1/2011 passed by CIT (A) XVII, New Delhi. 2. The grounds of appeals and Cross Objections are as follows:- I.T.A .No.-1812/DEL/2011 (A.Y. 2003-04) 1. That the Ld. CIT(A) has erred in law as well as on facts and circumstances of the case in deleting the addition of ₹ 1,72,36,944/- made by the A.O on account of bogus purchases made by the assessee from M/s Kashish Products Impex Pvt. Ltd. C.O .No.-39/DEL/2015 (A.Y. 2003-04) 1. On the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeal) erred in not holding that notice u/s 148 issued in this case is illegal, void without jurisdiction and barred by limitation and accordingly the said notice and the assessment order passed on the foundation of such notice is liable to the quashed. I.T.A .No.-1813/DEL/2011 (A.Y. 2004-05) 1. That the Ld. CIT(A) has erred in law as well as on facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings, the assessee furnished/produced details/documents, books of accounts including stock register bills and vouchers which have been examined by the Assessing Officer on test check basis. The Assessing Officer made a disallowance in respect of various purchases shown by the assessee from M/s Kashish Impex Products Pvt. Ltd. on the ground that these were bogus purchases and addition of ₹ 1,72,36,944/- was made to the income of the assessee. The assessee filed appeal before the CIT (A). The CIT (A) partly allowed the appeals of the assessee. 9. The Ld. AR submitted that Ground No. 1 is common for all the assessment years in the revenue s appeals. In respect of assessee s appeal Ground No. 1 is common in all appeals. The assessee has made five fold arguments. 10. The first contention of the Ld. AR was that the notice is barred by limitation as the last date of issue of Section 148 notice was 31/3/2008. The second contention of the Ld. AR is that notice u/s 148 has to be given after recording proper reasons and that the same is not done. The Ld. AR relied upon the Hon ble Delhi High Court judgment in the case of Haryana Acrylic Manufacturing Co. v. CIT (Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. He submitted that re-opening of assessment made by ACIT or ITO is in respect of their technical jurisdiction and is matter of administrative conveyance for which the Tribunal cannot interfere. 12. The Ld. DR further submitted that the reasons to believe is properly given by the Assessing Officer while re-opening the assessment. 13. We have perused all the records and heard both the parties. The undisputed fact is that the notice u/s. 148 was issued beyond the period of four years from the end of the Assessment Year in all the three cases. On the perusal of reasons recorded which are extracted hereinafter, we find that there is no whisper or an allegation that the assessee failed to make a full and true disclosure of all material fact necessary for assessment in its return of income. The reasons recorded for issue of notice u/s. 148 are extracted for ready reference: A.Y. 2003-04 Return declaring loss of ₹ 1,99,75,520/- was filed by assessee on 22.11.2003. Assessment u/s. 143(3) was completed on 24.03.2006 at a total loss of ₹ 1,24,75,520/-. Information was received from DRI. Regional Unit Jaipur and passed on this office that Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s beyond the four year period indicated above. The escapement of income from assessment must also be occasioned by the failure on the part of the assessee to disclose material facts, fully and truly. This is a necessary condition for overcoming the bar set up by the proviso to s. 147. If this condition is not satisfied, the bar would operate and no action under s. 147 could be taken. The reasons supplied to the petitioner does not contain any such allegation. Consequently, one of the conditions precedent for removing the bar against taking action after the said four year period remains unfulfilled. The notice dt. 29th March, 2004 under s. 148 based on the recorded reasons as supplied to the petitioner as well as the consequent order dt. 2nd March, 2005 are without jurisdiction as no action under s. 147 could be taken beyond the four year period in the circumstances narrated above In case of WEL Intertrade (P) Ltd. Anr. Vs. ITO (2009) 308 ITR 22, the Hon ble Delhi High Court held that: 9. .A plain reading of proviso to s. 147 makes it more than clear that where the provisions of s. 147 are being invoked after the period of four years from the end of the relevant asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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