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TMI Blog2024 (3) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... merable times and the documents are still not supplied rendering great hardship to Appellant to prepare and present her case. 2) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals) is not justified in confirming initiation of re-assessment proceedings u/s. 147 of the Income-tax Act, 1961. 3) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals) is not justified in confirming cash deposit of Rs. 11,00,000/- as unexplained/unsubstantiated/undisclosed money ignoring the fact that said bank account is joint account of appellant and her husband and referred deposits were made after drawing from his proprietary concern and accordingly it is was drawn back through cheque by her husband. 4) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals) is not justified in confirming addition of Rs. 4,393/- as undisclosed interest income and ignored the fact of deduction u/s. 80T as bank interest. 5) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals) is not justified in confirming addition of Rs. 5,10,222/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed by the appellant. The appellant has also not filed the return of income in response to notice u/s 148. No return of income was filed u/s 139 for AY 2012-13. 6.1 There is no dispute on the facts that the appellant has earned salary income of Rs. 5,10,222/- during the year under consideration. In addition, the assessee has also deposited cash of Rs. 11,00,000/- in her bank account maintained with the UCO Bank and has earned interest income of Rs. 4,393/-. The appellant has failed to explain the source of cash deposits of Rs. 11,00,000/- along with supporting documents. The claim of the appellant that the said bank account was joint account with her husband and cash deposited was out of drawings from husband's proprietary business M/s. Sharma Sales and Services remains unsubstantiated in absence of any evidence in support of the said claim. Further, the AO is justified in re-opening the case based on the information that substantial amount of cash was deposited in her bank account along with earning of substantial amount of salary coupled with the fact that the assessee did not file return of income. Therefore, the proceedings of re-opening are also found to be legall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious objection to the seeking of condonation of delay in filing of the appeal by the assessee. 10. I have thoughtfully considered the reasons leading to the delay of 14 days involved in filing of the present appeal by the assessee and find substance in the same. As observed by me hereinabove, while for the assessee in the course of the proceedings before the CIT(Appeals) had as on 18.12.2021 requested for an adjournment on the ground that she had applied for copy of the "reasons to believe", based on which, her case was reopened u/s. 147 of the Act a/w. copy of the approval of the prescribed authority u/s. 151 of the Act, but the said appellate authority had disposed off the appeal vide an ex-parte order dated 24.05.2023. On the basis of the aforesaid facts, I find substance in the contention of the Ld. AR that the assessee had remained unaware about the impugned order passed by the CIT(Appeals). As the assessee who was made aware of the order of the CIT(Appeals) dated 24.05.2023 only when her counsel, viz. Shri Hemant Sahu, Advocate had learnt about the same while filing her return of income for A.Y.2023- 24 on 31.07.2023, thereafter, involving no further loss of time filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughtfully considered the contentions advanced by the Ld. Authorized Representatives of both the parties in the backdrop of the orders of the lower authorities. 15. Apropos the contention of the Ld. AR that the A.O had grossly erred in assuming jurisdiction without recording any satisfaction that the income of the assessee chargeable to tax had escaped assessment, I am unable to concur with the same. Before proceeding any further, it would be relevant to cull out the "reasons to believe", based on which, the case of the assessee was reopened by the A.O u/s. 147 of the Act, which reads as under: "Reasons for initiating proceeding under section 147 The assessee has not filed any return for the assessment year 2012-13. As per the information available on records of this office, the assessee has deposited an amount Rs. 11,00,000/- by cash in savings a/c. in UCO bank during the F.YR. relevant to the assessment year under consideration. Further, the assessee has received salary income of Rs. 5,10,222/- on which TDS was also made u/s. 192B. Since the amount of time deposit appearing as above does not commensurate with his salary income and these income are above the taxable income, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CBDT, therefore, the claim of the Ld. AR that the failure on the part of the A.O to scrupulously follow the same for valid assumption of jurisdiction does not merit acceptance. Alternatively, a perusal of the Para 4 of the Standard Procedure dated 10.01.2018 (supra) reveals that the same contemplates, viz. (i) enquires by the A.O must have a "live link" with the information received/collected/found by the A.O; (ii) information available on ITBA portal on ITS/360 degree profile; (iii) enquiry made from other agencies; (iv) analysis of return of income, audited Profit & Loss A/c. and balance sheet, assessment folder in the case of assessment u/s. 143(3)/147 of the Act; (v) scrutiny of information available on the MCA website; (vi) details of other information gathered by the A.O u/s. 131 or u/s. 133(6) of the Act from the assessee and other relevant parties. As the assessee at the stage of recording "reasons to believe" by the A.O had not filed any return of income, therefore, there could be no occasion for the A.O to have analyzed return of income, audited Profit & Loss account, balance sheet and the assessment folder etc. 17. Also, on a careful perusal of the reasons leading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to costs." Accordingly, in the backdrop of the judgment of the Hon'ble Apex Court in Raymond Woolen Mills Ltd. (supra), the challenge thrown by the Ld. AR, as regards the validity of the jurisdiction assumed by the A.O u/s 147 of the Act, on the ground of sufficiency of the material available before him for arriving at a bonafide belief that the income of the assessee chargeable to tax had escaped assessment, cannot be accepted. 18. I, thus, on the basis of my aforesaid obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that signing of the notice or other document by that authority is a mandatory requirement and it is not a ministerial act or an empty formality which can be dispensed with. The Ld. AR backed by his aforesaid contention had taken me through the copy of the notice u/s. 148 of the Act dated 27.03.2018 which is stated by him to have been downloaded from the efiling portal. As the Ld. AR had assailed the validity of the jurisdiction assumed by the A.O for the reason that proceedings leading to the framing of assessment were based on an unsigned notice issued u/s. 148 of the Act, dated 27.03.2018, which had no existence in the eyes of law, therefore, in order to dispel all doubts and verify the factual position to the hilt, the Ld. DR was directed to produce the assessment records. 21. On a perusal of the assessment records, I find that as stated by the Ld. AR, and rightly so, notice u/s. 148 of the Act dated 27.03.2018 is neither digitally signed or manually signed. For the sake of clarity, the notice issued u/s. 148 of the Act dated 27.03.2018 (available in the assessment folder, Page 3) is culled out as under: Although at the first blush the absence of the manual/digital signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by that authority a mandatory requirement. It was further observed by the Hon'ble High Court that signing of the notice was not a ministerial act or an empty formality which can be dispensed with. Elaborating on the term "signed", it was observed that that same was to be construed as giving one's name to signify assent or adhesion to by signing one's name; to attest by signing or when a person is unable to write his name then affixation of "mark" by such person. For the sake of clarity, the observation of the Hon'ble High Court are culled out as under: "27. The first and foremost condition under sub-Section (1) of Section 282A is that notice or other document to be issued by any Income Tax Authority shall be signed by that authority. The word "and" has been used in sub-Section (1), in conjunctive sense, meaning thereby that such notice or other document has first to be signed by the authority and thereafter it may be issued either in paper form or may be communicated in electronic form by that authority. In the present set of facts, it is the admitted case of the respondents that the PCIT has not recorded satisfaction under his signature prior to the issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer under section 148 of the Act, 1961 were without jurisdiction. The questions no. (a) and (b) are answered accordingly." 23. Also, the affixation of signature on the notice for initiating proceedings u/s. 147 of the Act as a sine-qua-non for valid assumption of jurisdiction by the A.O for framing consequential assessment can be traced in the judgment of the Hon'ble High Court of Calcutta in the case of B.K Gooyee Vs. CIT, WB (1966) 62 ITR 109 (Cal). In the case before the Hon'ble High Court, the notice u/s. 34 of the Income Tax Act, 1922 (para-materia with notice u/s. 148 of the Income Tax Act, 1961) was held to be bad in law in as much as did not bear signature of the Income tax officer. It was held by the Hon'ble High Court that for a proper notice u/s. 34 of the Income Tax Act, 1922 the signature of the Income tax officer is a condition precedent in the exercise of jurisdiction by him. On a reference before the Hon'ble High Court u/s. 66(1) of the Income Tax Act, 1922, the Hon'ble High Court had observed that though non-signing in the notice might be a case of inadvertent omission, but the same is not a mere irregularity that can be cured. For the sake of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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