9911796707
TMI Blog2023 (6) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in holding that the appellant corporation was not set up by a central, state or provisional act for the welfare and economic upliftment of ex-serviceman being the citizen of India as required u/s 10(26BBB) of the Income Tax Act, 1961. 2. That the basic requirement of law is that the corporation should have been established by Central, State or Provincial Act for welfare and economic uplift of ex-serviceman being citizen of India. Government of Uttarakhand released order no 123/2003 dated 28th October 2003 to established Uttarakhand Poorva Sainik Kalyan Nigam Limited and registered it with Registrar of Companies. The Uttarakhand Poorva SainikKalyan Nigam Limited has incorporated under Companies Act, 1956 on dated 01.03.2004 and esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the materials on record. We find that the assessee has filed its return of income for the assessment year 2014-15 belatedly under section 139(4) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') on 06.10.2015 declaring total income of Rs. Nil, after claiming exemption for the profit of Rs. 5,11,44,966/- under section 10(26BBB) of the Act. This return was not selected for scrutiny by learned Assessing Officer. But we find very strangely, the learned Assessing Officer issued a notice under section 148 of the Act on 22.01.2015 itself, which is prior to the date of filing of return of income by the assessee. We find that the assessee has got time to file the return belatedly in terms of section 139(4) of the Act till 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceed to reopen the assessment. In any case, when the due date for filing the return of income is available in terms of section 139(4) of the Act to the assessee, how there could be any satisfaction on the part of the learned AO to conclude that the income of the assessee has escaped assessment. Hence, the very basis of reopening deserves to be quashed for want of any satisfaction that could be legally recorded. The reopening made by learned AO deserves to be quashed on this count also. 6. We find that the assessee has raised this issue of reopening notice, being issued before the end of the assessment year itself before the learned CIT(A), which is evident from the written submission filed before the learned CIT(A). The relevant portion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings merely because a particular return is not selected for scrutiny. Reopening of an assessment cannot be resorted to as an alternative for not selecting a case for scrutiny. There should be conscious formation of belief based on tangible information that income of an assessee had escaped assessment. This is conspicuously absent in the instant case before us. With regard to the legal issue raised by the assessee vide ground no. 4, we find that the issue in dispute has already been adjudicated by the Coordinate Bench of Delhi Tribunal in the case of ITO Vs. Momentum Technologies Pvt. Ltd. in ITA No.5802/Del/2017 dated 31.03.2021 for assessment year 2011-12, wherein, the Tribunal held as under: "17 The above provisions does not make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able High court in COMMISSIONER OF INCOME-TAX v. K. M. PACHAYAPPAN in 304 ITR 264 ( Madras) held that: "7. Applying the principles enunciated in the judgments of the Supreme Court as well as the Delhi High Court, cited supra, the Tribunal is right in coming to a conclusion that no action could be initiated under section 147 of the Act, when there is a pendency of the return before the Assessing Officer. The reasons given by the Tribunal are based on valid materials and evidence and we do not find any error or illegality in the order of the Tribunal so as to warrant interference." 18. Same is also the mandate of Honourable Delhi High court in [2007] 292 ITR 49 KLM ROYAL DUTCH AIRLINES v. ASSISTANT DIRECTOR OF INCOME-TAX where in it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was filed beyond the prescribed limit under section 139(4). The notice under section 148 as aforesaid is issued to assess or reassess the escaped income and the notice should be deemed invalid if ultimately the alleged income is found to have not escaped. If in the case of income having escaped it is found ultimately that there was a loss, the whole basis of issue of notice under section 148 falls down and the notice, therefore, becomes for all practical purposes invalid. It should be deemed as if it were never issued. As a natural consequence, therefore, it is to be assumed that there was no notice under section, 148 in this case and the return filed on 15-12-1982 was not a return in pursuance of the notice under section 148. We, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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