TMI Blog2023 (2) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under section 148 in invalid and therefore, the consequent assessment order is held to be illegal and bad in law. Thus, the ground no. 3 on legal issue, challenging the validity of assessment on account of non-service of notice u/s 148 of the act is allowed. Appeal of the assessee is allowed. - I.T.A. No. 104/Asr/2021 - - - Dated:- 20-12-2022 - DR. M. L. MEENA , ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE , JUDICIAL MEMBER For the Appellant : Sh. Surinder Mahajan , CA For the Respondent : Mrs. Kanchan Garg , Sr. DR ORDER Per Dr. M. L. Meena , AM : The present appeal has been filed by the assessee against the order dated 27.09.2021 passed by the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 11,44,800/- since Rs. 10,00,000/- were paid as advance in the year 2010-11 as evidenced by agreement to sell, copy of which was filed during appeal proceedings. 6. That order passed by Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi is based on assumptions presumptions far away from facts of the case. Orders based on assumptions and presumptions are not permitted under law and are void ab-initio. 7. That the Appellant requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed off. 3. Apropos ground no. 3, the ld. counsel for the assessee has challenged validity of assumption of jurisdiction in absence of non-service of notice under section 148 and 142(1) of the act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 149: (2002) 253 ITR 334 (Gau) : (2001) 117 Taxman 388 (Gau) Pg. 49 to 52 case laws. e) Commissioner Of Income Tax Vs. Ashok Kumar Bharti Vijay Kumar Goel High Court Of Allahabad (2005) 198 CTR (All) 260 : (2006) 282 Taxman 496 (All) : (2005) 149 Taxman 247 Pg. 53 to 58 case laws. f) Commissioner Of Income Tax Vs. Rajeev Sharma High Court Of Allahabad: Lucknow Bench (2010) 232 CTR (All) 303 : (2010) 192 Taxman 197 : (2010) 40 DTR 129 Pg. 59 to 71 case laws. g) Commissioner Of Income Tax Vs. Cebon India Ltd. High Court Of Punjab Haryana (2010) 229 CTR (P H) 188 : (2009) 184 Taxman 290 : (2010) 34 DTR 119 Pg. 72 to 74 case laws. 2. That affidavit to the effect that neither notice u/s 148 of the Act nor u/s 142(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 06.02.2012 where stamp duty charged was Rs. 64,800/-. After verification of registration deed, Assessing Officer held that land purchased by the assessee was capital asset within the meaning of section 2(14) of the Income Tax Act, 1961 and unexplained investment in the said property was taxable which escaped income in terms of section 147 of Income Tax Act, 1961 and required to be charged to tax as unexplained investment in the purchase of immovable property. The AO issued notice u/s 148 of the Act and further notice u/s 142(1) of the Act were issued which were never served on the assessee. Assessment was framed u/s 144 r.w.s. 147/148 of the Act vide order dated 30.11.2019 at income of Rs. 11,44,800/-. 5. In appeal, the Ld. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... believed that the income chargeable to tax had escaped assessment. Hence this ground of appeal is dismissed and the reopening of assessment is upheld. 7. Notices u/s 148 and u/s 142(1): 7.1 In the grounds of appeal the appellant contested that the impugned assessment framed u/s 144 r.w.s.147 is illegal and bad in law since notices u/s 148 and u/s 142(1) were not served on the assessee. 7.2 In the Assessment Order at Para No. 4 and 5 the Assessing Officer dearly stated that the notices u/s 148 and u/s 142(1) were served on the assessee. Appellant did not bring any material on record that the said notices were not served on him. Hence these grounds of appeal are dismissed as factually wrong. 6. Per Contra, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edent for validity of the reassessment proceedings under section 147 of the Act by observing vide para 8 as follows: 8. We are not inclined to accept the submission made by learned counsel for the appellant Revenue, as in the present case, no evidence in the shape of postal receipt was produced by the Revenue before the authority that actually, the said notice was sent by registered post and was served upon the assessee. The Tribunal has affirmed the categoric finding recorded by the CIT(A) that in the present case, the Revenue has not led any evidence to show that notice under s. 148 of the Act was actually served upon the assessee. In our view, the CIT(A) as well as the Tribunal have recorded a pure finding of fact, after considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
