TMI Blog2016 (8) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of reopening is an unsigned document and the reasons recorded are subsequent to the so called date of notice. - Decided in favour of assessee. - I.T.A. No. 55/Pat/2016 - - - Dated:- 22-8-2016 - Shamim Yahya (Accountant Member) For the Appellant : S. K. Narayan For the Respondent : S. K. Paul ORDER This appeal by the assessee is directed against the order of learned CIT(Appeals)-I, Patna dated 05-02-2016 and pertains to assessment year 2004- 05. The grounds of appeal read as under : 1. For that the CIT(A) was not justified in holding the unsigned notice u/s 148 by the ACIT as a valid notice. 2. For that no reason to believe was recorded by the ACIT before issue of notice u/s 148 yet the CIT(A) has wrongly held the proceeding to be valid. 3. For that the CIT(A) has wrongly held the Assessment Order passed u/s 143(3)/147 to be valid when it was passed without disposing the objection filed by the Appellant. 4. For that no valid reason to believe existed on the date of issue of notice u/s 148. 5. For that the CIT(A) has erred in confirming the estimation of gross receipts at ₹ 11,42,100/- and net profit at ₹ 8,41,632/- by the ACIT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 (upto 13.02.2004) 530 Total number of patients 2,538 The AO further estimated that if the number of patients calculated as 2538 for 3 months, if extrapolated, them it comes at 2538 x 3 = 7614 patients. As assessee used to charge ₹ 150.00 per patients, hence the total receipt calculated for the financial year 2003-04 is 7614 X 150.00 = ₹ 11,42,100.00. The AO further noted that the assessee has claimed expenditure amounting to ₹ 3,27,468/- in his profit and loss account. However, bills and vouchers, payment details and necessary evidences were not provided. However, the AO held that keeping the nature of profession and other facts in mind, the expenses claimed by the assessee is allowed, except the security expenses. Because security expenses is not related to the profession of the assessee. That it is of personal nature. Hence AO held that the expenses of ₹ 3,00,468.00 is allowed which is excluding the security expenses. The AO further observed that on perusal of the SB A/c 201424, Allahabad Bank, IGIMS Branch, Patna, it is seen that apart from the salary income, the assessee has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case since the order sheet date is 20.06.2006 it is being construed that it is the date of recording of reasons for issue of notice u/s 148 of the Act. 3.7 The appellant has also challenged that A.O. has passed the order without disposing the objections filed to the reasons recorded for reopening of assessment. On consideration of sequence of facts in this case, it is found that in response to notice issued u/s 148 of the Act on 20.06.2006 a compliance to the said notice was made on 07.07.2007 i.e. after laps of more than one year. In the meanwhile, it is also found that the appellant has filed a letter dated Nil received in the office of the A.O. on 22.08.2006 raising certain objections with regard to issue of notice u/s 148 of the Act. On page 2 of the assessment order there is detailed mention of elaborate discussion in respect of reasons to believe said to be held with the Authorized Representative of the appellant. Though there is no separate order on record in this regard but for the purposes of compliance to the direction contained in the order of Hon ble Apex Court in the case of GKN Driveshaft (India) Ltd. reported in 259 ITR 19, this will constitute sufficient compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- ( a ) not served upon him; or ( b ) not served upon him in time; or ( c ) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.] The reading of the above makes it clear that the said section places an estopple on the assessee if he has appeared and participated in the proceedings from arguing that the notice was a) not served upon him or b) not served upon him in time or c) served upon him in improper manner. I find that the above provision no where comes to the rescue of the Revenue in this case. It is a case falling under none of the clauses above but this is a case where the said document of notice is an unsigned document. The above section by no stretch of imagination intends to cure the same. Hence in my considered opinion this is a fundamental error and unsigned document by no stretch of imagination can be considered to be a notice u/s 148 of the I.T. Act. Hence in my c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m is chiefly used in cases where general words have a meaning attributed to them less comprehensive than they would otherwise bear, by reason of particular words preceding them. The recording of reason by mentioning it as being recorded on 20-06-2006 but signing it on 13-07-2006 can by no stretch of imagination be treated as reason recorded on 20-06-2006 by placing reliance upon the rule of ejusdem generis and for that matter on any other rule. 14. Under these circumstances, in my considered opinion, the assessee s objection on account of invalid reopening succeeds in this case inasmuch as the notice of reopening is an unsigned document and the reasons recorded are subsequent to the so called date of notice. Therefore, the assessment in this case is bereft of valid jurisdiction. Hence I set aside the order of learned CIT(Appeals) and quash the order in this regard. Since the assessee succeeds on validity of reopening, the adjudication on merits of the case is only of academic interest. Hence I do not engage into the same. 15. In the result, assessee s appeal stands allowed. Order pronounced in the Open Court on this 22nd day of August, 2016. - - TaxTMI - TMITax - Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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