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TMI Blog2023 (5) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, 1961. 3. Because in any case and in any view of the matter, action of Ld. CIT (Appeals) in upholding the impugned order is bad in law and against the facts and circumstances of the case and beyond the scope and jurisdiction of the impugned proceedings. 4. Because having regard the facts and to circumstances of the case, Ld. CIT(A) has erred in not considering the facts that Ld. AO has not provided the certified copy of reasons recorded and thus impugned reopening and reassessment order are bad in law. 5. Because without prejudice to the above, Ld. CIT (Appeals) has erred in not considering the facts that the reasons claimed to be reproduced by the AO in his letter dated 16.11.2017 are factually incorrect and self-contradictory and not sustainable on various legal and factual grounds and objection in this regard was raised by the assessee vide its reply dated 07.12.2017 and Ld. AO has erred in not disposing these objections in accordance with law and thus the impugned reassessment order is bad in law on these grounds. 6. Because having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in sustaining the impugned assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Sh. Sushil Garg as the owner of the alleged jewellery and later contended that the alleged invoice was related to Sh. Deepak Garg. Therefore, an addition made entirely on the basis of the statement of third party is not valid in the eyes of Law. 13. Because having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in Laws and Facts in the case of statement given by Sh. H.K. Goel, CA, that if part statement is true then the remaining part of the statement about purchase of jewellery is also true. The finding of Ld. CIT (A) is not correct due to the following reason: i) That there is no guarantee that if part of a statement is true then the other part of the statement will also true. Equity and fair play is denied in this case. ii) It is admitted by Sh. H. K. Goel that he provided accommodation entries in the various companies of the appellant and appellant had moved to Kar Vivad Samadhan Scheme, 1998 for settlement of issues relating to accommodation entries. However, in income tax every issue is a separate issue and should be examine on the merit of the case. And it should not be presumed that appellant had any intention to conceal income by not discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 2010-11 on 26.07.2010 may be treated as return filed in response to notice under section 148 of the Act. Re-assessment was completed under section 143(3) read with section 147 of the Act on 15.12.2017 determining the income of the assessee at Rs.24,11,721/-. While completing the reassessment the Assessing Officer made addition of Rs.19,35,001/- under section 69 of the Act representing the undisclosed investment in jewellery. 5. On appeal the ld. CIT (Appeals) sustained the addition made by the Assessing Officer. 6. Before us the ld. Counsel for the assessee arguing ground No. 2 of grounds of appeal i.e. assumption of jurisdiction by the Assessing Officer in re-opening the assessment and passing the assessment order under section 143(3)/147 of the Act submits that notice issued under section 148of the act is invalid and the reopening of assessment under section 147 of the Act being without jurisdiction and bad in law the assessment order is void ab initio. The ld. Counsel submits that a search and seizure operation was carried in M/s Garg group of cases u/s 132 of the Act. Thereafter, during the course of survey u/s 133A of the Act at the premises of CA, H. K. Goel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Officer without a notice or in pursuance of an invalid notice would be llegal and void. That is the view taken by the Bombay and Calcutta High Courts in Commissioner of Income-tax v Namsukh Molilal [1955] 27 ITR 54 and R.K. Das & Co. v Commissioner of Income-tax [1956] 30 ITR 439 and we think that that view is right" CIT vs. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC) 8. Ld. Counsel without prejudice to the above it is submitted that despite several requests to the Id. AO during the assessment proceedings to provide copy of the sanctioned form of recorded reasons to believe that income has escaped assessment. The same had not been provided to the assessee. Therefore, the date of recording reasons to believe, the sanction received and comments made by PCIT cannot be verified. However the text of reasons to believe has been quoted in the show cause notice dated 16.11.2017. 9.1 It is submitted that the assessment year involved in this case is assessment year 2010-11 and the notice u/s 148 was issued on 28.03.2017 which is beyond a period of 4 years from the end of the relevant assessment year. The original assessment was completed u/s 143(3) and in the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation) Panipat, has forwarded information to Income Tax Officer, Ward-1, Panipat, who is said to be the jurisdictional Assessing Officer at that time. However, we notice that the assessee filed return of income before Income Tax Officer, Ward-2, Panipat and the assessment was also completed under section 143(3) by Income Tax Officer, Ward-2, Panipat. However, a notice under section 148 of the Act was issued by Income Tax Officer, Ward-1, Panipat and there is nothing on record to suggest that the jurisdiction over the assessee was transferred by way of an order under section 127 of the Act transferring the case to Income Tax Officer, Ward-1, Panipat from Income Tax Officer, Ward-2, Panipat. It is further noticed from the assessment order that assessment jurisdiction over the assessee has been transferred to Dy. Commissioner of Income Tax (DCIT) Central Circle, Karnal by Pr. CIT, Karnal, vide F. No. Pr.CIT/KNL/Tech/Juris/2017-18/2672 dated 24-25/10/2017. We further observe that the present re-assessment under section 143(3) read with section 147 of the Act was completed by the DCIT, Central Circle, Karnal. The record before us suggests that the jurisdiction over the assessee rests w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. The issue of valid jurisdiction is a condition precedent to the validity of any assessment under Section 147 of the Act; therefore, the assessment made pursuant to such notice is bad in law. In support of this proposition we rely upon the cases of Hon'ble Apex Court in the cases of Y. Narayana Chetty Vs. ITO 35 ITR 388, 392 (SC); CIT Vs. Maharaja Pratap Singh Bahadur, 41 ITR 421 (SC); and CIT Vs. Robert, 48 ITR 177 (SC). In the light of the above settled principle of law, we have no hesitation to quash the reassessment proceedings since there was no valid notice pursuant to which the reassessment proceeding was made in the present case. Accordingly, the appeal filed by the appellant is allowed. 6. Since we have quashed the reassessment proceedings, we find it not necessary to adjudicate the grounds relating to the merits of the addition. " 13. In the case of CIT Vs. M.I. Builders Pvt. Ltd. (supra) the Hon'ble Allahabad High Court held as under:- "Having heard learned counsel for the parties and perusing the records, 17 we are of the view that on March 29, 2004, when the notice under section 148(1) of the Act was issued, ACIT, Range-IV, Lucknow, have no jurisdiction over t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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