TMI Blog2020 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... t object to the same or participated in the assessment proceedings. See RAJOO ENGINEERS LTD. [ 2008 (7) TMI 1013 - GUJARAT HIGH COURT] - Decided in favour of assessee. - I.T.A. No.698/Mum/2018 - - - Dated:- 1-9-2020 - HON BLE SHRI MAHAVIR SINGH, VP AND HON BLE SHRI MANOJ KUMAR AGGARWAL, AM Assessee by : Shri Naveen Kumar Mishra-Ld.AR Revenue by : Shri Michael Gerald-Ld.DR ORDER Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by revenue for Assessment Year [in short referred to as AY ] 2009-10 contest the order of Ld. Commissioner of Income- Tax (Appeals)-6, Mumbai, [in short referred to as CIT(A) ], Appeal No. CIT(A)-6/IT-30/136/2016-17 dated 21/11/2017 on following grounds: - 1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in not appreciating the fact that the reasons have been recorded on 27/08/2013 and the notice u/s.148 of I.T. Act, 1961 was dispatched on 30/08/2013. Therefore, even if the date mentioned on notice is 21/08/2013, the notice was issued and served after recording the reasons. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings were triggered pursuant to receipt of certain information from DGIT (Investigation) that the assessee received accommodation purchase bills aggregating to ₹ 188.85 Lacs from as many as 7 parties, the details of which have been extracted in para-4 of the quantum assessment order. A survey action was also conducted u/s 133A on the premises of the assessee on 13/02/2013. During the course of survey proceedings, statement of director of the assessee was recorded. The assessee failed to produce stock register during survey proceedings. 3.4 Accordingly, during the course of assessment proceedings, the assessee was directed to substantiate the purchase transactions. Although the assessee defended the purchases vide submissions dated 26/03/2015 but notices issued u/s 133(6) to confirm the transactions were returned back unserved. The assessee also failed to produce any of the suppliers to confirm the transactions. It was noted that the payments against these suppliers were long outstanding for which no plausible explanation could be furnished by the assessee. It also transpired that the assessee made VAT payments on behalf of the stated hawala parties. 3.5 The aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of issuing the notice for reopening the assessment. 4.3 The additional ground raised by the assessee was subjected to remand proceedings and the copy of notice issued u/s 148 was forwarded to Ld. AO for comments. The Ld. AO appeared before Ld. CIT(A) with case records and vide remand report dated 27/09/2017 confirmed that the notice issued to the assessee u/s 148 vis- -vis original notice found in the case record had similar handwriting. It was also reported that the date written in the notice of the assessee was written twice and could clearly be read as 21/08/2013. It was also confirmed that there was only one notice u/s 148 on records. However, Ld.AO submitted that the notices for AYs 2009-10 2010-11 were dispatched on 30/08/2013 and the assessee filed response vide letter dated 03/12/2013 wherein the date of notice u/s 148 was mentioned as 27/08/2013. It was also submitted that the assessee received notices u/s 148 on 30/08/2013 i.e. after the recording of reasons for reopening. Therefore, the said plea could not be accepted. Along with remand report, the copies of reasons record for AYs 2009-10 2010-11, copy of notice issued u/s 148, copy of speed post regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 21.08.2013 for both the A.Yrs. The case records have been verified and it is found that there is only one notice u/s.148 of IT. Act, 1961 as mentioned above available for each assessment years i.e. A.Y.2009-10 2010-11. I have not found any other notice beside the notices available on record. From the above submissions of the AO in the remand report it is clear that there is only one notice issued to the appellant u/s 148 of the Act and that the notice which has been received and copy thereof which was submitted during the instant proceedings by the Ld. AR of the appellant bears dates of issue of notice written twice but the date can be clearly read as 21.08.2013. It appears that the date of notice written second time was for the reason that on the first date written, rubber stamp of the office address was put, which was making the legibility of the date mentioned there little unclear. The date written second time is clearly 21.08.2013. Copy of the notice submitted by the Ld. AR of the appellant is Annexed as Annexure 1 forming part of this order. Copy of the notice submitted by the AO is Annexed as Annexure 2 forming part of this order. From the perusal of these no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. It can be seen from the provisions of section 148(2) of the Act that the AO has to record his reasons before issuing of notice under section 148 of the Act. In the facts of the case and as have been brought out above, there is little doubt that the notice issued to the assessee in this case is dated 21.08.2013 and the reasons have been undisputedly recorded on 27.08.2013. Therefore, to the extent of date mentioned on the notice as date of the notice being 21.08.2013, the same is before the date of recording the reasons by the AO. The contention of the AO that the notice u/s 148 was dispatched and served on the assessee after 27.08.2013 i.e. 30.08.2013 is not found to be of any consequence for the reason that what the provision of section 148(2) mandates is recording of reason 'before issuing any notice under this section'. The provisions of section 148(2) do not speak of either date of dispatch or date of service of notice u/s 148 of the Act. Accordingly, what is important and is of consequence is 'date of issue of notice which cannot precede 'recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973 CTR (SC) 454: (1971) 82 ITR 821 (SC). 16. In the facts and circumstances of the case and discussion here in above, it is seen that the notice issued in this case being on 21.08.2013 was before the date of recording the reasons which in this case was on 27.08.2013 and therefore there is clear violation of the provisions of section 148(2) of the Act. Accordingly the notice 148 issued in this case is held to be invalid being issued in violation on the provision of section 148(2) of the Act. As in this case the notice for assuming jurisdiction to reassess the income has been held to be invalid, the consequent proceedings and consequent assessment order passed is also held to be without jurisdiction. This ground of appeal is accordingly allowed. 17. As the assessment order passed itself has been held to be without jurisdiction, the other grounds raised by the appellant become inconsequential and therefore are not being decided on merits. For statistical purposes, all other grounds are treated as dismissed. 18. In the result the appeal is partly allowed. Aggrieved as aforesaid, the revenue is in further appeal before us. 5. Upon careful consideration of impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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