9911796707
TMI Blog2017 (1) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... its Principal Member. The petitioner/assessee received two copies of letter F.No. ITO-3(1)/NTL/u/s 148/2016-17/dated 13.05.2016 from the respondent, informing him to file the Income Tax Return (ITR) for A.Y. 2009-10 in response to notice issued u/s 148 of the Income Tax Act, 1961 (for short, the Act) dated 31.03.2016, which was enclosed with the letter. The petitioner alleges that the petitioner/assessee was made aware for the first time of the said notice dated 31.03.2016 vide said letter dated 13.05.2016. Thereafter, on 27.05.2016, the petitioner/assessee received yet another letter dated 27.05.2016, whereby the petitioner/assessee was asked to file their ITR for A.Y. 2009-10 in response to notice dated 31.03.2016 issued u/s 148 of the Act. The petitioner/assessee, through his authorized representative, vide reply dated 04.06.2016 to the letter dated 13.05.2016 submitted that "the Original return filed on 30.03.2010 may be treated as the return filed in response to the above-mentioned Notice" and further requested the respondent for copies of the reasons recorded for reopening the assessment, as also the approval accorded by the Prescribed Authority. Thereafter, the respondent v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submits that the Central Board of Direct Taxes (CBDT) has issued instruction no. 1/2009, dated 12.02.2009, which makes it mandatory for the respondent department to issue query letter before proceedings with issuance of notice u/s 148 of the Act. In spite of being seized of the aforesaid objections dated 20.06.2016, the respondent afresh wrote to the petitioner/assessee vide letter dated 22.06.2016 stating that processing u/s 148 of the Act are initiated against the petitioner/assessee on the AIR information available with the respondent office in the case of Sri Maruti Nandan Sah, Member of assessee AOP who is assessed as an individual. According to the petitioner, the observation and the reasoning of the respondent department with regard to escapement of Rs. 1,99,31,392/- is absolutely hypothetical inasmuch as Rs. 33,00,000/- was deposited in the individual account of Maruti Nandan Sah. Rs. 75,00,000/- worth of property was sold by Maruti Nandan Sah and Rs. 66,76,000/- worth of property allegedly sold by Maruti Nandan Sah and alleged difference in purchase of liquor to the tune of Rs. 24,55,392/- is all related to AIR information pertaining to Maruti Nandan Sah, PAN BBXP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee AOP has paid TCS on purchase amount of Rs. 2,05,23,993/-. Thus there arising difference of Rs. 2,05,23,9931,80,68,601=24,55,392/-. 8. That the assessee statement/written view in respect of the above facts found unsatisfactory. It is also evident from the above facts that the assessee has knowingly concealed the true picture of his final accounts. 9. That on the basis of above, it becomes a reason to believe that the income amounting to Rs. 24,55,392/- has escaped assessment for A.Y. 2009-10. 10. That accordingly a proposal for initiating proceedings u/s 148 of the I.T. Act 961 was put up before the Ld. Pr. CIT/haldwani, quoting the reason as per point No. 6 & 7 above. 11. That after receiving approval of Ld. Pr. CIT/Haldwani, a notice u/s 148 issued to the assessee on 31.03.2016 which was duly received by the assessee on 31.03.2016. 12. That further to proceeding u/s 148, a letter regarding requiring assessee to file return of income for A.Y. 2009-10, fixing date of compliance on 9.05.2016 was issued. In response the A.R. representative of assessee Shri Pawan Kumar Nath FCA attended and furnished that return filed on 30.03.2010 may be treated a return file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his capacity of an individual assessee as basis for initiating proceedings u/s 147/148 of the Act is not tenable because the respondent department was duty bound to adhere to instruction no.1/2009 dated 12.02.2009 which lays down the instructions for utilization of information mentioned in AIR as such is binding upon the respondent department. 6. Learned counsel contends that the respondent department on the basis of AIR information relating to and query letter issued to Maruti Nandan Sah, PAN No.BBXPS5336N, has ipse dixit assumed jurisdiction to issue notice u/s 148 to Maruti Sah & Brother, Assessee AOP having PAN No.AABAM0677P, which is against instruction no.1/2009 dated 12.02.2009, and is, therefore, illegal. 7. Learned counsel further contends that the Department claims to have served the notice u/s 148 dated 31.03.2016 on 31.03.2016 itself upon one Nirmal Kumar, who is neither the Assessee nor his Authorized Representative, whereas the Department is required by law to serve the notice upon the petitioner/assessee or upon his duly authorized representative. 8. Learned counsel further contends that the query letter dated 31.08.2015 was issued only to Maruti Nandan Sah, PAN N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nial of opportunity of hearing does not arise. He further submits that in the present case no Assessment Order u/s 143(3) have been passed by the Authority. 11. Learned counsel for the respondent further submits that as per section 149(1)(b) of the Act if more than four years have been elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year, then in that condition time limit to give notice is six years. He submits that in the present case the notice u/s 148 was issued to the petitioner after expiry of four years but within six years and for that the Income Tax Officer before issuing notice to the petitioner got the prior approval from the Principal Commissioner of Income Tax, Haldwani and as such notice issued to the petitioner is perfect and as per law. 12. Learned counsel for the respondent further submits that it is a settled principle of law that the Assessing Officer is the first fact finding authority on the issue and as per the law, the Court cannot look into jurisdictional error in issuing the notice u/s 147 of the Act. In support of his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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