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TMI Blog2019 (4) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. Whether on the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in allowing relief of Rs. 66,00,000/-out of total addition of Rs. 81,00,000/- made by the AO on account of unexplained bank deposits on the basis of additional evidences, which were never submitted before the AO despite providing various opportunities by the AO. 3. Whether on the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in allowing relief of Rs. 66,00,000/- out of total addition of Rs. 81,00,000/- made by the AO on account of unexplained bank deposits on the basis of additional evidences, which were admitted without satisfying the conditions mentioned in Rule 46A of the IT Rules." 3. Rival contentions have been heard and record perused. Facts in brief are that during the year under consideration, the assessee has sold its agricultural land. The case of the assessee was reopened on the basis of the information that the assessee had purchased an immoveable property and in absence of any return, source was not verifiable. In response to notice u/s 148, the appellant had filed his return declaring income from agriculture and bank interest. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration received and not the value taken by the Sub-Registrar for the purposes of stamp duty. The issue is squarely covered by the decision of the Hon'ble Delhi High court in the case of CIT Vs. Nilofar Singh, which has been followed by the ITAT Jaipur Bench in the case of Nand Lal Sharma Vs. ITO (2015) 61 taxmann.com 271 (JP Trib) 61 taxmann.com 271 and also in the case of Gyan Chand Batra 133 TTJ 482, respectfully following the same, we do not find any infirmity in the order of the ld. CIT(A) in directing the A.O. to allow the assessee's claim of deduction U/s 54F of the Act in respect of full value of consideration actually received by him. 5. The revenue is also aggrieved for deleting the addition of Rs. 66.00 lacs out of total addition of Rs. 81.00 lacs made by the A.O. on account of unexplained bank deposits. 6. Rival contentions have been heard and record perused. From the record we found that the A.O. made addition of Rs. 81.00 lacs to the income of the assessee on account of unexplained credits (including cash deposit of Rs. 15 lacs) in the bank account of the assessee as per the following details: 26/07/2006 to 29/09/2006 (cash deposits) Rs. 15.00 lacs 16/03/2007 Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er saving bank account of Satya Narayan Sharma with OBC, it is observed that a sum of R.s 11 Lac was transferred through cheque No. 257397 on 24.03.2007 and on the same date, a sum of Rs. 11 Lac has been credited in the bank account of the appellant. The appellant has also filed confirmation from Shri Satya Narayan Sharma in this regard. Therefore, looking to the totality of facts and circumstances, the credit entry of Rs. 11 Lac stands explained." 8. The revenue is in further appeal before the ITAT against the above deletion. 9. We have considered the rival contentions and carefully gone through the orders of the authorities below and the remand report so sent by the A.O. on which the ld. CIT(A) has already called for a rejoinder. A categorical finding has been recorded by the ld. CIT(A) after considering the remand report, to the effect that the assessee has received a cheque of Rs. 55.00 lacs from M/s Megha Colonizers which was deposited in his bank account maintained with OBC bank on 16/3/2007. The confirmation of M/s Megha Colonizers was also filed before the lower authorities. Accordingly, there is no infirmity in the order of the ld. CIT(A) in deleting the addition of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances of the case, the Id. CIT (A) has erred in sustaining the action of the Id. AO in considering a sum of Rs. 15,00,000 being amount deposited in bank account as undisclosed income of the appellant and erred further in enhancing the amount of Rs. 15,00,000 to Rs. 16,50,000 on said account by modifying the claimed opening cash balance. 6. That the assessee craves leave to add, amend, alter, withdraw any of the grounds of appeal before the hearing." 14. In the C.O., the assessee has basically taken legal ground with regard to completion of assessment U/s 143(3) of the Act without issuance of notice U/s 143(2) of the Act. In this regard, the ld AR has drawn our attention to page 1-2 of paper book containing acknowledgment of return filed with ITO ward 3(1), Jaipur on 13th March, 2015 for the A.Y. 2007-08. Since it is a purely legal issue, it can be admitted at Tribunal level for the first time in terms of decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs CIT (1998) 97 Taxman 358 (SC). During the course of hearing on 16/10/2017, the ld DR was directed to produce the assessment records and to furnish evidence of service of notice U/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of notice U/s 143(2) completing the reassessment proceedings are liable to be quashed in view of the following judicial pronouncements: (i) ACIT v/s Hotel Blue Moon 321 ITR 362 (SC) wherein it was held by the Hon'ble SC that issuance of notice u/s 143(2) is mandatory even in block assessments. (ii) CIT v/s Salarpur Cold Storage 50 taxmann.com 105 (All. HC): For framing order u/ s 143(3) it is necessary to issue a notice u/ s 143(2) of the Act, and in absence of notice u/s 143(2) the assumption of jurisdiction itself would be invalid. (iii) Travancore Diagnostics P Ltd. v/s ACIT 390 ITR 167 (Kerela HC): Omission to issue notice u/s 143(2) is incurable defect even u/s 292BB of the Income Tax Act, 1961. (iv) PCIT - 08 v/s Jai Shiv Shankar Traders P Ltd. 383 ITR 448 (Delhi): Issue of notice u/s 143(2) is not a procedural requirement and is mandatory and completion of assessment without issue of notice u/s 143(2) is fatal to the assessment. In this case return was filed after issuance of notice u/s 142(1) and since no notice was issued u/s 143(2) the assessment was held to be invalid. (v) ITO v/s Neeraj Goel (ITAT Delhi Bench SMC) : Assumption of jurisdiction to frame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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