9911796707
TMI Blog2024 (1) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... its that the Hon. Tribunal may be pleased to hold that the assessment order under appeal is void and illegal and the same be annulled." 3. Thereafter, assessee has raised other additional grounds as well as revised grounds vide letter dated 03/05/2023, which reads as under:- 1. The Ld. AO has erred in not issuing the statutory notice for informing the change in incumbency under sec. 129. 2. The Ld. AO has erred in assuming jurisdiction over the appellant's case without there being any order passed by the Authorities under sec, 120, sec. 124 and sec. 127 by the Pr. DGIT/DGIT/Pr. CCIT/CCIT/Pr. CIT/CIT and also not serving a copy of the order passed on the appellant. 3. The Ld. AO has erred in deriving his (borrowed) satisfaction based on the report of the DDIT (Inv) - Unit 7(4), Mumbai, only without having made any enquiries on his part before issuance of the notice under sec. 148. The satisfaction is derived by the AO in less than 24 hours after the receipt of the impugned information from the DDIT (Inv). 4. The Ld. AO has erred in issue of notice under sec. 148 without there being any tangible material evidence on record(s) which justified the recording of satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... groups of accounts (including both these accounts) were seen with no economic rationale. The inflow of funds are through RTGS/Clearing/cash in any of these accounts, funds are then rotated/transferred within these group accounts, finally the funds are moved out through RTGS/Clearing/Demat/Pay order on the same day. Customer is in the business of trading of iron and steel. The customer does not visit the branch and all transactions were executed by his representative Most of these accounts are operated by common directors/proprietors ie. Mukesh Maniklal Choksi, Jayesh Krishnaraj Sampat, Rakesh Hansh Mehta, Jitendra C Singh and Milan Shantilal Mehta. The group is into different businesses Le. Construction, Software, Telefilms, Synthetics, Textiles, Steel, Securities etc Enquiry with the bank After obtaining approval from the Addl. DIT (Inv), Unit 7 Mumbai, the bank account statement of the assessee was called for from the respective bank. The details received from the bank were carefully perused by DDIT (Inv), Unit 7(4), Mumbai. The total amount of debits & deposits/credits in bank account of the assessee during FY 2009-10 (A.Y. 2010-11) are as under:- Sr. No. Bank Details A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which is as under:- "With reference to the above we would like to bring to your kind notice that the above notice is time barred as per section 148 of the Act, 1961. As per the section, the notice for assessment should be communicated to the assessee on or before completion of 4 years from the end of the assessment year and in case where the assessing officer has reasons to believe that income escaping assessment is more than Rs. 1,00,000/- then on or before completion of 6 years from the end of the assessment year. Hence, the last date for communication of notice for assessment will be 31.03.2017 Hence, in lieu of the above, we would like to inform that we have not received any physical copy of the notice. Also, the one received electronically was dispatched by you on 01.04.2017 as per the annexure attached. Hence, we have reasons to believe that the assessment has become time barred. Please note the above and in case of any discrepancy kindly give us an opportunity of being heard." 7. Thus, the main objection of the assessee was that notice u/s. 148 was communicated after the expiry of limit provided u/s. 149, i.e., after 31st March 2017. The ld. AO while disposing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with regard to issue of notice u/s. 148. The assessee merely requested to quash the assessment order but had not made any submissions on the merits of the addition made. When the assessee had filed an appeal aggrieved with the addition of Rs. 18,16,58,398/-, it is for him to explain and argue why such addition should not be made in the assessee's hands But strangely, the assessee has been silent throughout. No kind of explanation was given to the DDIT (Inv.) or to the AO or during the appellate proceedings. Therefore, it is presumed that the assessee has nothing to offer in its defense and was mischievously trying to get relief on a technical ground. As it is an undisputed fact that there are credits to the tune of Rs. 18,16,58,398/- in the bank account of the assessee and the assessee had failed to explain the source of the same, the same has rightly been treated as income of the assessee for the relevant AY. The addition made by the AO is upheld. This ground of appeal is DISMISSED. 11. Now, before us the ld. Counsel has raised multiple legal issues taken by way of additional ground. The first ground which has been raised that ld. AO has not issued the statutory notice for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il on 01/04/2017 and hence, the whole proceedings are invalid, being beyond time limit. Before us, assessment records were produced and the ld. CIT DR has filed various evidences to show that the notice u/s. 148 was issued on 31/03/2017, after recording the reasons in writing and obtaining the approval from PCIT Central Circle-3, Mumbai who was the competent authority u/s. 151. The notice dated 31/03/2017 was dispatched through speed post on 31/03/2017 on the registered and official address of the assessee. The ld. DR had filed Journal of speed post from the Department of Post that notice was issued to the assessee, "M/s. Creative World Telefilms Ltd." on 31/03/2017 with EM Speed Post No.EM972396308IN. The photo copy of registered post sent to the assessee had also been filed. From the perusal of the copy of envelope it is seen that postal authorities had mentioned "left". Thereafter, Bench vide order sheet entry dated 06/07/2022 had raised following query to the ld. AR. "Before us Ld. AR appearing on behalf of the assessee submitted that here in this case, notice u/s 148 was issued on 31st March 2017, which as per him, had not been served upon the assessee. A report was called f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s despite on records it is continuing to show this address as its registered office. 14 Be that as may be, the ld. Counsel for the assessee, firstly has objected to the furnishing of journal of speed post and envelop stating that it is an additional evidence filed by the department and was never confronted to the assessee. He has raised various other frivolous arguments that the date mentioned on speed post envelop is 31/08/2017 and not 31/03/2017 and the journal submitted by ld. DR is not stamped by postal department etc. All these arguments are to be frowned upon being baseless and misleading, because not only envelop mentions the date 31/03/2017, but also the journal of post office maintained by the Income Tax Department mention the details of notices sent date wise, EM number and bears signature of the officer. The speed was sent on 31/03/2017 at the registered office of the assessee. It is a wild allegation of the Ld. Counsel that AO has done any kind of overwriting of 31/08/2017 to 31/03/2017. This allegation is divorced from the records submitted before us; firstly, the speed post journal maintained by the department mentions 31/03/2017, secondly, the Assessing Officer as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme of the 1961 Act so far as notice for reassessment is concerned, is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149. A clear distinction has been made out between 'issue of notice' and 'service of notice' under the 1961 Act. Section 149 prescribes the period of limitation. It categorically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitations, jurisdiction becomes vested in the ITO to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued. In this case, admittedly, the notice was issued within the prescribed period of limitation as 31-3-1970, was the last day of that period. Service under the 1961 Act is not a condition precedent to conferment of jurisdiction in the ITO to deal with the matter but it is a conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of limitation is concerned which is to be reckoned from the date of issue is valid. Now, coming to the issue of service of notice, the assessee continuously has been claiming that the registered /official address on which notice has been sent or which has been mentioned in its return of income in another communication with the correct address and continues to be the same, then the efforts should have been made by the department to serve the notice through affixture which is no more prescribed under the CPC order (v). Now, here in this case the notice sent through speed post may not have been served upon the assessee as it was not found on its registered / official address, then here in this case it has also been brought on record that notices were also sent through ITBA portal on 31/03/2017 and by email which mail assessee received post 12 AM (i.e., 1:02 AM) on 01/04/2017. Even if it is presumed email has been sent post 12 AM, however, the fact of the matter is that once, notice has been issued within time and even if assessee has received the notice on the next date i.e. on 1/04/2017 by electronic media or email which is valid mode of service of notice u/s 282 and 282A, then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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