TMI Blog2018 (7) TMI 1874X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, no substantial question of law arises. - D.B. Income Tax Appeal No. 172/2018 - - - Dated:- 31-7-2018 - Mr. Kalpesh Satyendra Jhaveri And Mr. Ashok Kumar Gaur JJ. For the Appellant(s) : Mr. Daksh Pareek for Mr. Sameer Jain For the Respondent(s) : None JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has allowed the appeal of the assessee. 2. Counsel for the appellant has framed following substantial question of law arises. (i) Whether on the facts and in the circumstances of the case and in law the Hon ble ITAT is right in not appreciating the facts that the assessee has violated the condition No.2 mentioned in the order of approval granted u/s 10(23C)(vi) of the Act according to which the assessee will not invest or deposit its funds (other than voluntary contribution received and maintained in the form of jewellery, furniture etc.) for any period during the previous year relevant to the assessment years mentioned specified in sub-section (5) of section 11 of the Act ? (ii) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT is right in settin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-clause (vi) or any hospital or other medical institution referred to in sub-clause (via), is approved by the prescribed authority and subsequently that Government or the prescribed authority is satisfied that- (i) such fund or institution or trust or any university or other educational institution or any hospital or other medical institution has not- (A) applied its income in accordance with the provisions contained in clause (a) of the third proviso; or (B) invested or deposited its funds in accordance with the provisions contained in clause (b) of the third proviso; or (ii) the activities of such fund or institution or trust or any university or other educational institution or any hospital or other medical institution- (A) are not genuine; or (B) are not being carried out in accordance with all or any of the conditions subject to which it was notified or approved, it may, at any time after giving a reasonable opportunity of showing cause against the proposed action to the concerned fund or institution or trust or any university or other educational institution or any hospital or other medical institution, rescind the notification or, by order, withdraw the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication of mind by the ld. CIT(E) but was only signed by the DCIT (Hqr.). In case in hand it is apparent that the ld. CIT(E) delegated its powers to DCIT (Hqr.) to issue show cause notice and therefore, it is based on the satisfaction of the DCIT (Hqr.) and not of ld. CIT(E). para 2 and 6 of the impugned show cause notice clearly manifest that it was issued by the DCIT (Hqr.) and not by the CIT(E). The language of the show cause notice does not give any impression or inference that it is an expression of the satisfaction of ld. CIT(E). The Kolkata Bench of this Tribunal in case of Arun Kanti vs. CIT (supra) while considering the issue of validity of show cause notice issued u/s 263 of the Act not signed by the ld. CIT has observed in para 5 and 5.1 as under:- 5. Investment/deposits of funds not in the prescribed modes:- The sub clause (b) of 3 rd proviso of section 10(23C) requires the society to invest/deposit the funds in the modes specified under section 11(5) of the Act. However, it is noticed that the society has made advances which is neither as per the objects nor in the modes prescribed u/s 11(5) of the Act. In the Balance Sheet as on 31.03.2013, it is noticed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: The above party has informed us the final hearing of Gutab Kothari V/s State has completed and they are waiting for decision, however we have informed them that either they should give us land by end of this month or return our money. Please note that they are no way connected to us or neither we have any business relation with them except for this particular deal. Further vide reply dated 02.09.2016 submitted as under:- Regarding outstanding amount as informed in our letter dated 10.08.2016 that we had given time to party either to give land or refund the money before the end of August, 2016, now they have requested that the present time is very bad for construction industries and they wanted time till end of this year. They assured us that they will certainly fulfill their commitment. In fact we also do not have any other option to wait till year end, or to file a case against them. A similar view was taken by the Kolkata Bench of this Tribunal in case of M/s Assam Bangal Carriers vs. CIT (supra) in paras 7 and 8 as under:- 7. We have considered the rival submissions. A perusal of the records shows that the show cause notice u/s 263 of the Act dated 26.02.2013 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides as under:- The CIT may call for and examine the record of any proceeding under this Act, and if he considers that any order passed by the AO is erroneous insofar as it is prejudicial to the interest of Revenue he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing fresh assessment. Now we can also refer to the notice u/s. 263 of the Act issued to the assessee. This notice was signed as under:- Yours faithfully Sd/- Vikramaditya (Vikramaditdya) ACIT, Hqrs., Burdwan, For Commissioner. From the above, it is clear that the said notice u/s. 263 of the Act ha s not been signed by the Commissioner of Income Tax rather it has been signed by ACIT, Hqrs., Burdwan. The Hon ble Allahabad High Court in the case of Rajesh Kumar Pandey (supra) has expounded that when the Ld. CIT has not recorded his satisfaction, but it was the satisfaction of the Income Tax Officer (Technical) who is not competent to revise his order u/s. 263 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to above, respectfully following the aforesaid decision we hold that the assumption of jurisdiction u/s 263 of the Act in the present case is not valid. Order u/s 263 of the Act is accordingly quashed and the appeal of the assessee is allowed. In view of the above conclusion, the other grounds of appeal are not taken into consideration. The Hon ble Allahabad High Court in case of CIT vs. Rajesh Kumar Pandey (supra) while dealing with the validity of notice and applicable of the provisions of section 299BB has observed as under:- 299BB Notice deemed to be valid in certain circumstances- Where as assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under the Act that the notice was-- (a) not served upon him; or (b) not served upon time in time; or (c) served upon him in an improper manner; Provided that nothing contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
