TMI Blog2023 (7) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... and taken by DEEPAK WADHWA [ 2021 (3) TMI 332 - DELHI HIGH COURT] and SAGAR ENTERPRISES [ 2001 (12) TMI 18 - GUJARAT HIGH COURT] . In the case in hand, initiation of proceeding by recording of reasons by the ITO, Ward-3, Gandhinagar on the fact of non-filing of return of income for the year under consideration by the appellant which admittedly is found to be wrong, particularly, in view of the recording of filing of return by the appellant by the Ld. AO found to be bad in law. Thus, the entire proceeding is thus vitiated and found to be not sustainable in the eye of law and therefore, quashed. Decided in favour of assessee. - I.T.A. No. 1586/Ahd/2019 - - - Dated:- 12-7-2023 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Appellant : Shri Manish J. Shah, AR For the Respondent : Smt. Trupti Patel, Sr. D.R. ORDER PER MS. MADHUMITA ROY - JM: The instant appeal filed at the behest of the assessee is directed against the order dated 02.07.2019 passed by the Ld. Commissioner of Income Tax (Appeals), Gandhinagar (in short CIT(A) ) arising out of the order dated 22.12.2017 passed by the ITO, Ward-3, Gandhinagar under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, within the meaning of Section 147 of the Act. Hence, in my opinion, this is a fit case for re-opening of assessment u/s 147 of the I.T.Act, 1961. 4. It is relevant to mention that the form of recording reasons for initiation of proceeding under Section 148 of the Act and for obtaining approval of the Joint/Additional Commissioner of Income Tax/Commissioner of Income Tax specifically mentions in Column 18 therein that voluntary return has not been filed by the appellant. On the other hand, the appellant filed before us the copy of the return of income and also the copy of acknowledgment for the year under consideration. Copies whereof have also been forwarded to the Ld. DR. The case of the appellant before us is this that the main basis of recording of reasons for issuance of notice under Section 148 of the Act for initiation of re-assessment proceeding is mainly on the fact of non-filing of return for A.Y. 2013-14 by the appellant which is absolutely wrong finding of fact which has been pointed out by the Ld. AR at the time of hearing of the instant appeal. On this aspect, he has further drawn our attention to the assessment order wherein filing of return of income by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually incorrect. The ace firm is engaged in the business of construction. The said firm came into existence vide partnership deed dated 1-10-1990. Therefore, the relevant previous year for the firm for filing its first return of income would be 1-10-1990 to 31-3-1991. On perusal of the records it is noted that no return for assessment year 1991-92 has been filed by the assessee-firm. As per Explanation (2)(a) to section 147 the following shall be deemed to be a case where income chargeable to tax has escaped assessment. Therefore Me Kaji, the learned counsel appearing on behalf of the petitioner sought time to place on record the details about the filing of the return. Along with the affidavit-in-rejoinder, xerox copies of following documents have been annexed. (i)Intimation dated 9-3-1992, issued under section 143(1)(a) of the Act. (ii)Acknowledgement dated 28-8-1991, of filing of return for the assessment year 1991-92. (iii)Statement of income for the assessment year 1991-92. At the time of hearing, originals of all the three documents have been produced for perusal of the Court. 3. On going through the reasons recorded and the documents w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2018 and consequential order dated September 28, 2018 with the following manner: 4. On the other hand, Ms. Adeeba Mujahid, who appears on behalf of the Revenue, has drawn my attention to paragraphs 27 and 28 of the counter affidavit wherein it is averred that the administrative approval of the Principal Commissioner of Income-tax was taken on 26, 2018. 4.1. As regards the other submissions made on behalf of the petitioner assessee, Ms. Mujahid says that a communication was issued on February 9, 2018 to the petitioner-assessee, prodding him to file his returns as his case had been flagged by the non-filers monitoring system (NMS), put in place by the Income-tax Department. 4.2. Ms. Mujahid says that the aforementioned communication (which was a computer-generated letter) was, consequently, attempted to be served on the petitioner-assessee which, though was returned by the postal department and, thus, left with no option, service was effected on the authorized representative of the petitioner-assessee. 4.3. Ms. Mujahid submits that since no response received to its communication and the petitioner-assessee's Income-tax return (ITR) could not be found in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated March 27, 2018 as also the impugned order dated September 28, 2018. It is ordered accordingly. 6.1. The Revenue will pay towards cost Rs. 20,000 to the petitioner-assessee. The costs will be remitted to the petitioner-assessee within ten days of the receipt of a copy of this order. 7. The captioned writ petition is disposed of in the aforesaid terms. 7. Thus, it appears from the about judgments that as the very basis of assessment under Section 148 of the Act on the wrong finding of fact of non- filing of return by the appellant found to be non-sustainable, we do not find any reason to deviate from the stand taken by the Hon ble High Courts as mentioned hereinabove. In the case in hand, initiation of proceeding by recording of reasons dated 19.04.2016 by the ITO, Ward-3, Gandhinagar on the fact of non-filing of return of income for the year under consideration by the appellant which admittedly is found to be wrong, particularly, in view of the recording of filing of return by the appellant on 10.01.2015 by the Ld. AO found to be bad in law. Thus, the entire proceeding is thus vitiated and found to be not sustainable in the eye of law and therefore, quashed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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