9911796707
TMI Blog2024 (7) TMI 1554X X X X Extracts X X X X X X X X Extracts X X X X ..... o reopening of the case. 2. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) has erred in upholding the validity of notice issued under section 148 of the Income Tax Act whereas as per facts and other material placed on record, notice issued under section 148 of the Income Tax Act is an illegal and invalid notice issued without any proper and valid reasons. 3. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) has erred by holding that the sales of Rs. 42,68,400/-as deemed income u/s 68 of the Income Tax Act without appreciating that these sales are already declared as income in the return filed. Therefore, provisions of section 68 are not applicable. 4. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) has erred by holding that modus of making bogus sales of Rs. 42,68,400/- is only to increase the turnover with the motive to avail better loan facilities from the banking authorities without appreciating that these sales are negligible i.e., 0.00013% of the total turnover of Rs 325626 lakh of the company. 5. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other hand, has sought to place reliance on the impugned order. It has been contended that in the reasons recorded, the date of the filing of return and the income returned by the assessee were inadvertently wrongly stated, due to typographical error, which does not vitiate the reasons recorded by the AO to form his belief of satisfaction of escapement of income. 6. In this regard, it is seen that in para No.1 ( APB-33) of the reasons for issue of notice u/s 148 of the Income Tax Act in the case of the assessee for the year under consideration, it has been stated as follows : "The assessee is a Private Limited Company and engaged in business of manufacturing of Vanaspati Ghee and refined oils. The assessee has filed return of income through e-filing on 30.09.2010 for assessment year 2011-12 declaring income of Rs.1,62,28,910/-". 6.1 The copy ( APB-1) of Income Tax Return acknowledgement for the year under consideration shows that such return of income was filed on 28.09. 2011 and not on 30.09.2010, as stated in the reasons recorded. Further, in the said return of income, the total income for the year is 'NIL' and not of Rs.1,62,28,910 /-, as stated in the reasons record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. The above mentioned case is fixed for hearing on 22.02.2024 before the Hon'ble ITAT, Bench-A, Chandigarh. 2. In this regard, it is submitted that this office had asked the concerned Assessing Officer i.e. DCIT, Central Circle-1, Ludhiana to give her comments on the following : (i) In the first paragraph of the original assessment order dated 03.02.2014, it is mentioned that "Return declaring nil was e-filed by the assessee on 28.09.2011'', while in the first paragraph of reasons recorded by the A.O. to issue the notice u/s 148 of the Act, the A.O. had mentioned that "the assessee had filed return of income through e-filing on 30.09.2010 for A.Y. 2011-12 declaring income of Rs. 1,62,28,910/-." 3. In this context, it is submitted that the reply of the concerned Assessing Officer i.e. DCIT, Central Circle-1, Ludhiana has been received in this office, giving her comments, which are reproduced as below : The case of the assessee was re-opened u/s 147 of the Act and assessment was completed u/s 147/143(3) dated 19.12.2018 at a loss of Rs. 4,45,54,101/-. From the perusal of the reasons recorded by the A.O., it is noticed that the A.O. has inadvertently mentioned d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chandigarh 'SMC' Bench of the Tribunal, (2016) 158 ITR 965 (CHD)(TRIB) iii) Shri Ram Mohan Rawat Vs ITO, order dated 10.10.2019 passed by the Jaipur Bench of the Tribunal in ITA No. 1014/JP/2018 iv) Van Oord Dredging & Marine Contractors BV Cs ADIT, order dated 28.02.2018, passed by the Mumbai Bench of the Tribunal in ITA Nos. 495&496/Mum/2016. 8.3 Similarly, in 'Sagar Enterprises' ( supra), it has been held as follows : " that it was apparent that the fact of non-filing of the return for the assessment year 1991-92 had weighed with the respondent for arriving at the satisfaction about the failure on the part of the assessee and escapement of assessment of income. However, the material on record showed that the return had been filed. In such circumstances, it could not be said with certainty as to which fact would have weighed with the officer concerned and once it was shown that an irrelevant fact had been taken into consideration, to what extent the decision was vitiated would be difficult to say. Moreover the Income-tax Officer had stated that the payment which was stated to be undisclosed income relevant for the assessment year 1991-92 could have been made during the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very vague and general and rather inconsistent with the facts available on record so far as the filing of return of income by the assessee. The formation of belief on such incorrect and vague reasons would lead the reopening of the assessment as invalid." 8.6 Then, in 'Van Oord Dredging and Marine Contractors BV' (supra), it has been held as under : "In AY 2005-06, the A.O. has reopened the assessment on incorrect facts and further the assessing officer has failed to demonstrate that there was failure on the part of ht assessee to disclose fully and truly all material facts during the course of original assessment proceedings. Hence the reopening of assessment of AY 2005-06 is liable to be quashed on these two grounds also. Accordingly we set aside the order passed by Ld. CIT(A) on this issue and hold that the reopening of assessments of both the years are not in accordance with the law and accordingly quash the assessment orders passed for both the years under consideration." 9. No decision contrary to the above case laws has been cited before us, nor has any of the above decisions been shown to have been reversed by higher authorities. 10. Therefore, respectfully following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies without appreciating that these sales are negligible even less than 0.0001% of the total turnover of Rs 47981 lakh of the company. 5. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) has erred by confirming addition of Rs. 26,62,821/- merely on the ground that the confirmation from the concerned party to whom sales made has not been furnished. 6. On the facts and the circumstances of the case and in law and material placed on record, the Ld. Commissioner of Income Tax (Appeals) has erred in confirming the addition of Rs. 26,62,821/-. 7. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) has erred by making addition of Rs.53,256/- as unexplained expenditure u/s 69C of the Act merely on presumption without providing any opportunity to the assessee appellant especially when no such addition has been made by the Assessing Officer. 14. As the issues, facts and circumstances in this appeal i.e. ITA No.409/ CHD/2023 are exactly similar to those of ITA No.407/ CHD/2023, therefore, our findings given in ITA No.407/ CHD/2023 would apply mutatis-mutandis to ITA No.409/ CHD/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
