TMI Blog2021 (5) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s 148 of the Act or the assessment order passed by any assessing officer without jurisdiction is bad in law. I find that this legal objection has been raised by the assessee is without any cogent evidence. The assessee has failed to discharge its onus to substantiate that the Assessing Officer who has issued notice under section 148 of the Act or the one who has passed assessment order were not having jurisdiction over the assessee at relevant point of time. The assessee has made mere bald assertions without there being any substantive material on record. The case laws relied on by the ld. AR of the assessee are on different set of facts and hence, distinguishable. Ergo, additional ground of the appeal is rejected. No statutory notice under section 143(2) has been served on the assessee before making assessment - As in assessment order has categorically mentioned that in response to the notice under section 148 of the Act issued and served on 19/03/2014, the assessee filed letter dated 24/07/2014 stating that the return filed on 31/10/2013 may be treated as return in response to the notice under section 148 of the Act. The said dates have not been disputed by the ld. AR of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. Both the impugned orders are of even date i.e. 25/02/2019. Since, the facts in both the impugned assessment years are similar and the grounds raised by the assessee in both the appeals are identical (except for the amount of addition), these appeals are taken up together for adjudication and are decided by this common order. 2. Shri Vimal Punmiya appearing on behalf of the assessee submitted at the outset that these appeals are against ex-parte orders of the CIT(A), however, these appeals can be decided by the Tribunal without restoring to the First Appellate Authority. The ld. Authorized Representative of the assessee further submitted that the assessee has filed additional grounds of appeal challenging validity of reopening and the assessment order. 2.1. The ld. Authorized Representative of the assessee made four fold legal submissions challenging reopening under section 148 r.w.s. 147 of the Income Tax Act, 1961 (in short the Act ). The first objection of the ld. Authorized Representative of the assessee is that reassessment proceedings were initiated beyond the period of four years. The notice under section 148 of the Act dated 19/3/2014 was issued without obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counts: - The reasons recorded do not quantify the amount of escapement; - The AO has recorded reasons based on tax evasion petition received from investigation wing without applying his mind. To buttress these submissions reliance has been placed on the following decision: - CIT vs. Insecticides (India) Ltd., 357 ITR 330 (Delhi) 3. The ld. Authorized Representative of the assessee submitted that without prejudice to the legal grounds raised, the assessee has also challenged addition on merits. Narrating the facts of the case the ld. Authorized Representative of the assessee submitted that the solitary issue raised in this appeal is against income from house property determined by the Assessing Officer. In response to notice under section 148 of the Act, the assessee filed return of income declaring its income as Nil . The assessee company is not engaged in any business activity during the period relevant to the assessment year under appeal. The assessee is having shops i.e. Shop No.10 11 situated at Kenwood Apartment CHS Ltd., Dr. Ambedkar Road, Bandra (West) and these shops have not been actually let out during the relevant period. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin 30 days from the date of service. The assessee responded to the said notice on 24/07/2014 i.e. after much delay from the date of service, hence, there was no question of issuing any notice under section 143(2) of the Act. In response to the third legal objection of the assessee, the ld. Departmental Representative submitted that the notice under section 148 was issued to the assessee in March 2014 after recording reasons by the assessing officer having valid jurisdiction. Thereafter, there was major restructuring in the Department. The jurisdiction of the Assessing Officer was changed by the time assessment order was passed in March, 2015. Therefore, the notice was issued by a different assessing officer and the assessment order was passed by different officer. Both the assessing officers had valid jurisdiction over the assessee at relevant point of time, therefore, the legal objections raised by the assessee are without any merit. 4.1. On merits of the addition, the ld. Departmental Representative supporting the assessment order submitted that the issue may be restored to the Assessing Officer to re-examine area of the shops. The report of the Inspector on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. Section 2(28C) of the Act defines Joint Commissioner as under: Joint Commissioner means a person appointed to be a Joint Commissioner of Income Tax or an Additional Commissioner of Income Tax under sub-section (1) of section 117 In the instant case since reopening proceedings were initiated prior to amendment by the Finance Act, 2015, satisfaction of Joint Commissioner was required for issuing notice under section 148 of the Act. The Assessing Officer has issued notice after the satisfaction was recorded by the Additional CIT. The Additional CIT has been included in the definition of Joint Commissioner, therefore, I see no infirmity in the notice issued under section 148 of the Act. The case laws on which the ld. AR of the assessee has placed reliance does not apply to the facts of the case. Consequently, the ground No.11 raised as additional grounds of appeal is dismissed. 7. The second legal objection of the assessee is that the reasons for reopening have been recorded by an Assessing Officer having no jurisdiction. A perusal of notice issued under section 148 of the Act shows that the same has been issued by ITO, Ward -9(1) (2) and the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return filed on 31/10/2013 may be treated as return in response to the notice under section 148 of the Act. The said dates have not been disputed by the ld. AR of the assessee. Thus, it is evident from record that the assessee failed to comply with the notice u/s 148 of the Act within the time period specified. Once, the assessee fails to comply with the conditions given in the notice, the assessee losses its right to object to service of notice under section 143(2) of the Act. Before seeking relief on legal grounds, it is incumbent upon the assessee to first comply with the conditions within the time frame prescribed under the notice. Thus, the decisions relied by the ld. AR of the assessee does not support the case of the assessee. Therefore, I see no merit in ground No.13 raised as additional grounds of appeal by the assessee. Consequently, the same is dismissed. 9. In ground No.14 of the additional grounds of appeal, the assessee has assailed reasons for reopening on the ground that the reasons are non reasons in the eyes of law . In the instant case, as is evident from the assessment order no assessment was made under section 143(3) as the return filed by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A perusal of the assessment order reveals that the Assessing Officer had deputed Inspector for conducting the enquiry. On the basis of report furnished by the Inspector, the Assessing Officer determined net annual value of the shops as ₹ 6,72,000/- with an yearly increase of 5% to 10%. The area of each shop as per assessment order is 800 sq. ft. The area of shops mentioned in the assessment order and in the report of Municipal Corporation is at variance. During the course of hearing the ld. Departmental Representative was asked to produce said report. The ld. Departmental Representative expressed his inability to place the same on record. In so far as the rental value of the property is concerned, I find that in the case of Park Paper Industries Pvt. Ltd. vs. ITO reported as 25 SOT 406, the Tribunal held that where the property has not been let out, Municipal value would be proper yardstick for determining annual value. The Tribunal after considering the decisions rendered in the case of M.V. Sonawala vs. CIT (supra), Shiela Kaushish vs. CIT (supra) and the decision of Hon ble Calcutta High Court in the case of Prabhabati Bansali 141 ITR 419 concluded as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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