TMI Blog2021 (11) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... and dated 21.02.2015 that the original return filed should be treated as return filed in response to notice under section 148 of the Act. AO has unequivocally admitted in his Remand Report that no notice was issued (not available on record) u/s 143(2) of the Act. The assessee has also filed an affidavit dated 31.01.2017 (duly notarized) stating that he never received notice under section 143(2) of the Act. These averments remained uncontroverted. Thus, we do not find any infirmity in the order of ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed. - ITA No.106/SRT/2017 And ITA No.107/SRT/2017 - - - Dated:- 20-9-2021 - Shri Pawan Singh, JM And Dr. A. L. Saini, AM For the Assessee : Shri Rohit Vijayvargiya - CA For the Respondent : Shri Ritesh Mishra CIT(DR) ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned two appeals filed by Revenue, pertaining to Assessment Years 2007-08 and 2008-09, are directed against the separate orders passed by the ld.Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the fact that neither these books of accounts were submitted by the assessee before the assessing officer during the assessment proceedings nor by the Ld CIT(A) during the appellate proceedings, thereby not giving ample opportunity to examine the same. v) On the facts and in the circumstance of the case and in law, the Ld CIT(A) erred in treating commission @ 0.50% on bogus purchase without appreciating the fact that the assessee never either attended the office of the assessing officer or filed any submission before him during the assessment proceedings as well as during the remand proceedings. vi) On the facts and in the circumstance of the case and in law, the Ld CIT(A) erred in admitting the additional evidence because the assessee did not fulfil any of the conditions laid down under Rule 46A(1) for filing of additional evidences and the same was also conveyed by the assessing officer in his remand report. vi) On the facts and in the circumstances of the case and in Law, the Ld.CIT(A), Surat ought to have upheld the order of the Assessing Officer. It is, therefore, prayed that the order of the Ld CIT(A)-1 Surat may be set-aside and that of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they were looking after miscellaneous office work like depositing cheques in banks, handing over parcels to clients, making data entry, etc. 5.On being asked about various aspects of the business of this group, the dummy partners/ Directors/ proprietors of the entities of this group, they expressed their ignorance and stated that they are not involved in any such activities and that they are paid lump sum salary in cash. During the course of search, blank cheque books signed by the dummy partners/ Directors/ proprietors of the entities of this group were also found, which were seized. Similarly, books of account in the name of the dummy partners/ Directors/ proprietors of the entities of this group were also found, which were also seized. The assessing officer noted that according to the regular books of accounts and the returns of income filed by different entities of the group, the business of these entities are disclosed to be trading of rough and finished diamonds and manufacturing of diamond jewellery. However, no stock of diamond was found from any of the premises searched or surveyed. It was also seen that no books of account were maintained by the group at the respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income for the year under consideration. Since the evidential and material facts found during the course of search and survey in the case of Shri Bhawarlal Jain group proves that accommodation of purchase entries of ₹ 3,99,61,340/- from above parties, the bogus concerns run by Bhanwarlal group. It is prima facie apparent that the assessee has utilized such bogus purchase bills to suppress the profits for the year under consideration. 7. In view of the above, the Assessing Officer had reason to believe that an income of ₹ 3,99,61,340/- as stated above, has escaped assessment in the hands of the assessee for the year under consideration. Therefore, the case was reopened and notice under148 of the I.T. Act was issued on 29.03.2014. The same was served by affixture on 31-3-2014. Thereafter, various opportunities were granted to the assessee and the assessee has not complied to any of the opportunities accorded. The opportunities granted to the assessee are discussed in tabular form in para 8 of the assessment order. 8. The assessing officer observed that assessee has failed to comply with any of the terms of notices issued during the assessment stage and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer. He also argues that ld CIT(A) should not have allowed the additional evidences since the assessee did not fulfil any of the conditions laid down under Rule 46A(1) for filing of additional evidences. The Ld. CIT(A) also erred in accepting the plea of the assessee to treat commission @0.50% on bogus purchase on the basis that proper books of accounts and stock register were maintained without considering the fact that no such books of accounts and documents were produced before Assessing Officer, during assessment stage, therefore, ld DR prays the Bench that either the matter may be remitted back to the file of the assessing officer for de novo adjudication or addition made by the assessing officer may be sustained. 12. On the other hand, Shri Rohit Vijayvargiya, Learned Counsel for the assessee begins by pointing out that ld CIT(A) has passed a reasoned order after taking remand report from the assessing officer. He pleads that admission of additional ground by the ld CIT(A) is purely of legal nature. On the basis, of material available on record it is certain that additional ground raised by the assessee challenging the very jurisdiction of the Assessing Officer to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.12.2014 was issued by the Ld assessing officer providing sufficient opportunity to the assessee to support his return of income by documentary evidences, therefore assessing officer has fulfilled the statutory condition. Learned DR also contended that no specific notice was required to be issued u/s 143(2) and also contended that non issuance of notice u/s 143(2) will not render the assessment invalid. Learned DR had also referred to a case law to buttress his contention, [Commission of Income Tax v. Madhya Bharat Energy Corporation Ltd. (2011) 337 ITR 339 Del], which purported to hold that non-issue of notice under 143(2) of the Act on an assessee prior to completion of the reassessment would not be fatal to the reassessment. Learned DR also sought to distinguish the decision in ACIT v. Hotel Blue Moon 321 ITR 362(SC), on the ground that it pertained to a block assessment. 15. We have also noted the argument of the Ld. Counsel for the Assessee that assessing officer has not followed the mandatory procedure of assessment laid down under section 142 and 143 of the Act by not issuing notice U/s 143(2) which is by now an undisputed fact duly confirmed by the assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be condoned by referring to section 292BB of the Act. Thus, decision in the case of Madhya Bharat Energy Corporation does not hold the field. 18.We note that Ld. DR for the Revenue also sought to distinguish the decision in ACIT v. Hotel Blue Moon on the ground that it pertained to a block assessment. We note that Ld Counsel of the Assessee had referred plethora of judgments laid down by Hon'ble High courts following the judgment of the Apex court where in the facts were similar to case at hand and it was held that for completing the assessment under section 148 of the Act, compliance with the procedure of issue of notice under Section 143 (2) was mandatory. This position of law has been further clarified by Delhi high Court in the case of Alpine Electronics Asia Pvt. Ltd. v/s. DCIT (2012) 341 ITR 247 (Del). 19. It has been also contended by ld DR that assessee attended the assessment proceedings regularly and never objected regarding issue and service of notice u/s143(2) so the default can be treated as procedural irregularity u/s 292BB of the Act. As per the provision of section 292BB where an assessee had appeared in any proceedings or cooperated in any enquiry rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction by issuance of notice of reopening itself would not be sustainable in law. Besides, section 292BB of the Act would apply with regard to failure of 'service' of notice and not with regard to issue of notice u/s 143(2) prior to finalization of assessment order, cannot be condoned by referring to section 292BB of the Act. It has been also held that merely because assessee participated in proceedings pursuant to notice issued under section 148, it does not obviate mandatory requirement of issue of notice under section 143(2) of the Act.This is an undisputed position of fact, as far as the present case is concerned, that assessing officer failed to issue a notice to the assessee under section 143(2) of the Act when the Assessee made a request before the assessing officer vide letters dated 23.12.2014 and dated 21.02.2015 (paper book page 106) that the original return filed should be treated as return filed in response to notice under section 148 of the Act. The Ld. assessing officer has unequivocally admitted in his Remand Report that no notice was issued (not available on record) u/s 143(2) of the Act. The assessee has also filed an affidavit dated 31.01.2017 (duly n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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