TMI Blog2023 (8) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... Circle 6(1) Ahmedabad u/s 153A - as argued according to CBDT Instruction it is mandatory that search cases shall be centralised in central charges but AO passed assessment order, who is not in charge of Central Range in violation of aforesaid Instruction of CBDT - HELD THAT:- It is a well settled law that no person can call in question the jurisdiction of the assessing officer after the expiry of time limit laid down in subsection (3) of section 124 of the Act which ensures that the objection is raised before the assessment is completed. The brief facts of the instant case are that the assessment was completed 31-12-2016 u/s 153A of the Act and the appeal was disposed of by Ld. CIT(Appeals) vide order dated 16-08-2018. However, the assessee now before us vide application dated 17-01-2022 is seeking to challenge the jurisdiction of the assessing officer on the ground that in view of the CBDT Instruction, the concerned officer did not have requisite authority to pass the assessment order Assessee did not object to the jurisdiction of the assessing officer during the course of assessment proceedings and nor any challenge was posed before CIT(Appeals) during the course of appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. CIT(A) is against law, equity justice. 2. The Ld. CIT(A) has erred in law and/or facts in upholding the addition made by Ld. A.O. U/S 68 of the Act though no incriminating material found during the course of search. 3. The appellant Craves liberty to add, amend, alter or modify all or any grounds of appeal before final hearing. 3. Further, the assessee has also taken the following additional ground of appeal before us:- 1. The assessment order passed by Ld. AO is without jurisdiction and in contravention to the instruction No. 08 dated 14-08-2002 of CBDT. Application for condonation of delay 4. At the outset, we observe that the appeal is time-barred by 246 days. The assessee has filed application for condonation of delay along with affidavit, in which the assessee submitted that the Counsel who represented the case of the assessee before Ld. CIT(Appeals) advised the assessee not to file further appeal before ITAT. However, the assessee approach in another counsel, who advised assessee to file appeal before the Tribunal. Accordingly, since the assessee is not conversant with Income Tax Laws, he relied on the advice of the earlier counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of order of Tribunal , dated 29-12-2003, until June, 2008, assessee's delay of 1754 days in filing appeal before Bombay High Court against Tribunal order was to be condoned. The brief facts of the case were that assessee sought condonation of delay of 1754 days in filing appeals against order, dated 29-12-2003, passed by Tribunal. The assessee pleaded that it had no knowledge about passing of Tribunal's order, until it was confronted with auction notices in June, 2008, issued by competent authority , immediately upon which, assessee filed appeal with High Court. The High Court dismissed assessee s appeals holding that these were not fit cases in which inordinate delay of 1754 days in filing appeals deserved to be condoned. However, it was found that respondent revenue did not expressly refute stand taken by assessee that they had no knowledge about passing of order, dated 29-12-2003, until June, 2008. The Supreme Court held that unless that fact was to be refuted by the Revenue, question of disbelieving stand taken by assessee on affidavit, could not arise and for which reason, High Court should have shown sympathy to assessee by condoning delay in filing concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, the High Court held that allocation of functions to various authorities or officers is one of procedures and any defect arising from allocation of functions is a mere irregularity which does not affect resultant action . In the case of Punjab Urban Development Authority, Mohali 42 taxmann.com 160 (Chandigarh - Trib.), the ITAT held that once a notice under section 143(2) is issued by a particular officer and if assessee wishes to object to such jurisdiction then objection has to be raised in terms of section 124(3)(a) within 30 days of issue of such notice and, in absence of such objection, assessee cannot challenge jurisdiction later on. In the case of All India Children Care Educational Development Society 41 taxmann.com 20 (Allahabad) , the High Court held that Tribunal is not a competent authority to adjudicate upon jurisdiction of Assessing Officer when it is not raised before Assessing Authority. In the case of CWT v. Ravi Malhotra 166 Taxman 253 (Allahabad) , the High Court held that where up till stage of assessment no objection whatsoever was taken by assessee relating to jurisdiction of Wealth-tax Officer concerned, it would be presumed that assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar under consideration, the assessing officer observed that there was an increase in the capital from ₹ 14,88,157/- to ₹ 28,77,899/-. On being requisitioned by the AO, the assessee submitted that the capital of the current year included profit of current year and gift given to the assessee by his mother. The assessee submitted the gift deed and bank statement showing gift of ₹ 11,98,025/-. The AO, however held that the gift was not genuine for the reason that the affidavit demonstrated that the stamp paper used for making deed of purchase was on 08-02-2008 and gift deed was written on 05-01-2011 i.e. the date on which the money was transferred. This clearly shows that the transaction was an afterthought. Secondly, the AO observed that normally gift is given in round figures, whereas in the instant case amount gifted was not so. In view of the above, the AO held that the gift of ₹ 11,98,025/- as unexplained cash credit in the hands of the assessee. 11. In appeal, Ld. CIT(Appeals) observed that from the copy of bank statement it is seen that the amount which was gifted to the assessee from his mother came from a joint account, in which the mother is the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 132 of the Act was conducted of the assessee on 19-02-2015 and notice under section 153A of the Act was issued to the assessee on the 23-02-2016. During the course of assessment, the assessing officer observed that a perusal of the balance sheet for the previous assessment year 2010-11 shows the closing capital of ₹ 14,88,157/- whereas in the current assessment year 2011-12, the opening capital is shown at ₹ 28,77,899/-. As per the assessee, the difference was owing to the fact that the capital of the current year includes profit of the current year and gift given to the assessee by his mother for an amount of ₹ 11,98,025/-. The aforesaid gift deed was discarded by the assessing officer on the ground that genuineness of the said could gift deed was in doubt. However, what also needs to be seen in the instant facts is that the aforesaid gift deed is also duly supported by bank transfer from the bank account in which the mother of the assessee is the primary holder to the account of the assessee during the year under consideration. Further, the aforesaid gift has not been transferred by way of a single transfer on a single date, but comprises of multiple transfers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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