TMI Blog2023 (3) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the same nor has submitted a justification behind saying so. At the same time, no explanation for the cash credit was filed either before the AO or during the appellate proceedings. Thus authorities below have taken a correct view of the matter and the order of the ld. CIT (A) is well reasoned and does not need any interference - Decided against assessee. - ITA No. 6261/Del./2017 - - - Dated:- 9-3-2023 - SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER FOR THE ASSESSEE : NONE FOR THE REVENUE : SHRI OM PRAKASH , SR. DR ORDER This appeal by the assessee is directed against the order of ld. CIT (Appeals)-31, new Delhi dated 16.06.2017 pertaining to the Assessment Year 2002-03. 2. The grounds of appeal taken by the assessee read as under :- 1. The Learned commissioner erred in not considering the fact that on the date of passing the order on 14-3-2014 (before the date fixed for the next date of hearing on the plea that the AO had to go for election duty) the learned AO had no jurisdiction whatsoever and therefore the order is NON EST, void ab initio, and a nullity, and is unprecedented and a mockery of justice. (The appeal before the Commissioner (appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Learned Commissioner erred in not considering the fact that the law regarding the law of Limitation and the law relating to statutory notices, as to the how and when the same are to be issued are substantive law, and if there is no compliance of the law and rules and procedure (which is meant for protecting the assessee from harassment by the assessing authority) on the aspect of the issue of notices, the assessee cannot be called upon for reassessment. 7. The learned Commissioner erred in not considering the fact that the learned AO did not consider the fact that after the Honourable Appellate Tribunal set aside the Ex parte Assessment Order and referred back the matter for assessment, and the then AO instead of apprising the Assessee of the details of the Notice u/s 148, namely the reasons for sending the same, the basis of the same, and the basis of the approval by the competent authority for issuing the notice, merely adjourned the same sine die, even though the requirement was for time bound assessment, and the Learned Commissioner has further erred in making no comments on this matter. 8. The learned Commissioner erred in not considering the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner erred in not considering the fact that the matter of merit could not have been gone into or considered without first considering the fact whether the statutory requirements regarding notices were satisfied. 17. The Learned Commissioner erred in not considering the fact that the matter of merit could not have been gone into or considered without first considering the fact whether the order of the learned AO was legal, particularly when it was the specific plea of the assessee that the order was illegal, and VOID, without jurisdiction, on the basis of usurped powers and unprecedented, defying all canons of justice and fair play. 18. The Learned Commissioner erred in not considering the fact that the learned department is avoiding the issue of legal validity of statutory notice (issue of and service of the same). 19. The Learned Commissioner erred in not considering the fact the assessee's representative appeared immediately before the AO when contacted on phone. 20. The Learned Commissioner erred in not considering the fact the assessee was not given inspection even though the same was asked for and the assessment order was passed to deny the opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee in the correspondence exchanged with the learned Commissioner (appeal 31) and the Commissioner (Appeal X). 33. The Learned Commissioner erred in not considering the issue of absence/lack of jurisdiction on the date of passing of the orders, on the usurping of the powers by the learned order on the date of the Order, and in not dealing with and or considering the grounds 3 to 19 of the grounds of appeal. 34. The learned Commissioner erred in not considering the fact that it was the duty of the AO to consider the grounds/points/issues raise before the Honourable Appellate Tribunal before the Honourable tribunal set aside the ex parte assessment order and particularly so, as there was no reply filed by the respondents to the grounds/points/issues. 35. The learned Commissioner erred in not referring to and not discussing and or commenting on the case law referred to and submitted by the appellant regarding the law Notices to be issued, usurping of powers by the AO and consequences of not abiding by the rule of law laid down by the Honourable Courts. 3. Brief facts of the case are that the assessee is an individual and had manually filed the return showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons of forming the belief is not for the Court to judge but it is open to the assessee to establish that there, in fact, existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non-specific information. 4.7. The question before me is that as to whether on the basis of facts of this case, the AO had reason to believe that income had escaped assessment or not. I have referred to various decisions of Hon'ble Supreme Court wherein it has been specifically laid down that power to reopen an assessment by the AO is subject to condition that he has reason to believe that income has escaped assessment. It is also established from judicial principles laid down by Hon'ble Apex Court that formation of belief need not necessarily result into reassessment. Taking the totality of the facts and circumstances of this case into consideration and in light of the legal principle laid down by Hon'ble Supreme Court referred to earlier in this order, I am of the considered view that AO has not committed any error in facts and in law while issuing the notice u/s 147/148 and is J justified in forming belief that the income of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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