TMI Blog2020 (9) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... line where the ground of appeal is decided by the first appellate authority and then, by the Tribunal. We accordingly set aside this ground of appeal to the file of the ld CIT(A) to decide the same by way of a speaking order after providing reasonable opportunity to the assessee. The assessee shall be at liberty to raise the contentions so advanced before us and the same are thus left open and the ld CIT(A) shall decide the same as per law. Hence, the ground of appeal is allowed for statistical purposes. Non provising reasons to beileve - HELD THAT:- Reasons so recorded before issuance of notice u/s 148 have been duly communicated to the assessee and the latter having not objected to the reopening of the proceedings, there is no prejudice which is caused to the assessee by way of denying his rightful right to object to the reopening of the proceedings and there is thus no violation of the directives of Hon ble Supreme Court as laid down in the case of GKN Driveshaft. [ 2002 (11) TMI 7 - SUPREME COURT] The decision of the Hon ble Karnataka High Court in case of CIT vs V. Ramaiah [ 2020 (7) TMI 134 - KARNATAKA HIGH COURT] is distinguishable as in that case, it was establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, an affidavit of the assessee was placed on record. It was submitted that the time limit for filing the present appeal should therefore start from the date the order is communicated or received by the assessee. It was further submitted that there was no willful attempt on the part of the assessee to cause delay nor did he has any vested interest in the delay. The Hon ble Supreme Court in a catena of judicial pronouncements including that of Collector Land Acquisition vs M. Katiji Others has held that delay in filing an appeal may be condoned if there is sufficient cause for the delay. The Hon ble Supreme Court has also held that a liberal view may be taken on this issue since the primary duty of the Courts is to dispense justice and not to dismiss appeals on mere technicalities. It was accordingly submitted that the prayer of the assessee for condonation of the delay may be accepted and appeal may be admitted for adjudication on merits. 3. Per contra, the ld DR submitted that the order has been duly dispatched at the assessee s address given in Form 36 by the office of the ld CIT(A) and thus duly served on the assessee. It was accordingly submitted that the assessee has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 read with section 148 issued is invalid and illegal since there was no reason to believe that income has escaped escapement . 7. The ld. AR submitted that the issue of invalid notice arose after completion of the assessment proceedings as the reasons recorded by the AO became known only to the assessee after the assessment order was received. It was submitted that this issue was raised at the time of proceedings before the ld. CIT(A) but he did not consider the same. It was accordingly submitted that this issue goes to the root of the matter, and does not need further verification, or filing of additional document and accordingly the same may kindly be admitted for adjudication. 8. On merits of the additional ground of appeal, the ld AR submitted that it is a classic case of borrowed satisfaction where the AO has not conducted any inquiry to find out whether the report received by him from ITO (I CI) was correct or not, and to verify how he had come to the conclusion that it was a fit case to issue notice u/s 148. It was submitted that a case cannot be reopened for the purpose of verification of the facts as stated in the reply which the assessee through his CA had given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 6,55,816/- in his savings bank account maintained with Oriental Bank of Commerce, Ajmer Road, Jaipur. Therefore, basis the said information, the AO had formed a prima facie view that the income has escaped assessment. It was submitted that it is settled judicial proposition that sufficiency and adequacy of material may not be seen at the time of examining the validity of the jurisdiction AO u/s 148 so long as the material in possession of the Assessing Officer has necessary nexus with the formation of belief that income has escaped assessment. In support, reliance was placed on the Hon ble Supreme Court decision in case of Raymond Woolen Mills Ltd. 11. We have heard the rival submissions and perused the material available on record. There is no dispute that the notice u/s 148 dated 16.09.2016 was duly issued and served on the assessee. The assessee by way of additional ground of appeal is challenging the very jurisdiction of the Assessing Officer stating that there was no reason on part of the Assessing officer to believe that income has escaped escapement and the same being a legal ground can be taken before the Tribunal. 12. In this regard, we refer to assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded for reopening the case of the assessee thus the consequent reassessment completed is bad in law and deserves to be deleted. 2. On the facts and in the circumstances of the case and in law. Ld. CIT(A) erred in confirming the order passed by ld. AO without providing adequate opportunity to assessee, which is against the principal of natural justice. It is thus prayed that order passed by ld. CIT(A) deserves to be set aside. 3. That the ld. CIT(A) further erred in deciding the appeal ex parte as the reasons due to which case could not be attended to by counsel were absolutely genuine, which were not considered by ld. CIT(A) and the case was decided within a span of 86 days from the first hearing fixed. 4. On the facts and in the circumstances of the case and in law, ld. CIT(A) has erred in confirming the action of ld. AO, addition made by ld. AO of ₹ 27,08,900/- on account of unexplained loan and advances. 5. That the ld. CIT(A) has erred in confirming the impugned additions made by ld. AO without affording adequate and proper opportunity to present its case and also without making proper enquiries and investigation to the overwhelming evidences/mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Referring to the same, the ld. DR submitted that the AR of the assessee in his letter dated 05.07.2017 had requested to provide reasons for issuing notice u/s 148 of the Act. Thereafter, on 11.07.2017 while seeking adjournment vide letter dated 11.07.2017, the AR of the assessee appeared before the AO and the reasons so recorded were handed over by AO to him. Again, while serving notice u/s 143(2) dated 19.07.2017, copy of the reasons were again made available to the AR on 20.07.2017 which were duly acknowledged by the AR of the assessee. It was submitted that the assessee had thereafter attended and participated in the scrutiny proceedings before the AO from time to time. The reassessment proceedings were never challenged or objected to at the stage of assessment proceedings. Had he done so, the objection would have been disposed off by the AO. It was submitted that at this stage of appellate proceedings, it is not open to the assessee to challenge the same. It was finally submitted that the directives of Hon ble Supreme Court on the issue as laid down in the case of GKN Driveshaft reported in 259 ITR 19 are quite clear and the same has been duly followed by the AO and given that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contentions of the ld AR alleging frabrication of evidence as submitted by the ITO, the ld DR vehemently opposed the said contentions and submitted that it is a serious allegation raised by the ld AR which however has not legs to stand. It was submitted that the ITO is an officer of the Government of India who holds a responsible position to discharge the duties bestowed on him by the Income Tax department and he has merely submitted the documents available as part of the assessment records and he has no personal interest whereby he intends to fabricate with the official records. It was submitted that where the Bench so desires, the assessment records can be called for and examined directly by the Bench. It was further submitted that there is no standing protocol that the reasons have to be supplied with along with a covering letter by the ITO. In the instant case, where the AR duly authorized by the assessee has attended to the proceedings, appeared before the ITO and where during such proceedings, copy of the reasons so recorded have been handed over to him and where he has acknowledged the same, the same is in duly compliance with the directions issued by the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter listed for 11.07.2017 in view of the fact that the assessee needs some more time to submit the requisite documents and information. Thereafter, there is notice u/s 143(2) dated 19.07.2017 issued by ITO considering the original return filed u/s 139(1) as filed in response to notice u/s 148 and another notice u/s 142(1) dated 24.11.2017. The assessment was thereafter completed u/s 147 read with section 144 of the Act vide order dated 26.12.2017. 22. The case of the assessee is that he has requested for the copy of the reasons and inspite of that, the reasons have not been provided to him. The case of the Revenue is that the A/R on behalf of the assessee has been provided with a copy of the reasons firstly on 11.7.2017 and thereafter, along with notice u/s 143(2) dated 19.07.2017. In support, copy of assessee s letter dated 11.07.2017 and notice u/s 143(2) dated 19.07.2017 have been placed on record and the contents thereof read as under: 23. On perusal of the aforesaid two documents which are part of the assessment records and which have been submitted by the ITO as part of his report dated 30.06.2020, we find that copy of the reasons u/s 148 have been duly provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ld DR that there is no standing instructions/protocol that the reasons have to be necessarily supplied along with a covering letter by the ITO. In our view, where the copy of the reasons so recorded have been handed over to the AR and where he has acknowledged the same, the same has been duly communicated to the assessee in spirit of the directions issued by the Hon ble Supreme Court in case of GKN Driveshaft. Further, we find that the ITO is the issuing authority and the assessee is the recipient and therefore, where the acknowledgement of having received the reasons for issue of notice u/s 148 by the AR of the assessee have been taken by the ITO on the official copy of the letter dated 11.07.2017 and thereafter, on the official copy of the notice issued u/s 143(2) dated 19.07.2017, the same being part of the assessment record cannot be doubted. 24. In the entirety of facts and circumstances of the case, we are of the considered view that the reasons so recorded before issuance of notice u/s 148 have been duly communicated to the assessee and the latter having not objected to the reopening of the proceedings, there is no prejudice which is caused to the assessee by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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