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Income Tax Appellate Tribunal, “SMC - A” BENCH : BANGALORE
Before: SHRI N.V. VASUDEVAN
Date of hearing : 12.12.2019 Date of Pronouncement : 20.12.2019 O R D E R This is an appeal by the Assessee against the order dated 27.03.2019 of CIT(Appeals), Davangere, relating to assessment year 2009-10.
The Assessee is an individual. He carries on the business of running a petrol bunk. He filed return of income for AY 2009-10 on 5.10.2009 with the Income-Tax Officer (ITO), Ward-3, Davangere. Till 2008-09, the Assessee was filing return of income with ITO, Ward-2, Shimoga and the PAN (Permanent Account Number) of the Assessee was lying with ITO, Ward-2, Shimoga. Since was PAN was lying with ITO, Ward-2, Shimoga, notice dated 25.8.2010 u/s.143(2) of the Income Tax Act, 1961 (Act) was issued by the ITO, Ward-2, Shimoga. Another notice dated 17.1.2011 u/s.142(1) was issued by the ITO, Ward-2, Shimoga. A third notice dated 31.5.2011 was also issued by the ITO, Ward-2, Shimoga calling for particulars with regard to the return of income filed by the Assessee. In response to this letter, the Assessee filed a letter dated 31.5.2011 before ITO, Ward-2, Shimoga stating that the return of income was filed before ITO, Ward-3, Davanagere and he alone would have jurisdiction. Thereafter proceedings were transferred to ITO, Ward-3, Davangere.
Thereafter the ITO, Ward-3, Davangere, issued a notice dated 25.7.2011 u/s.142(1) of the Act calling for some details from the Assessee. To the said letter, the Assessee by a letter dated 24.8.2011, submitted that notice u/s.143(2) of the Act is required to be issued prior to framing an assessment u/s.143(3) of the Act. By letter dated 26.8.2011, the AO informed the Assessee that notice u/s.143(2) of the Act dated 25.8.2010 was already issued by the ITO, Ward-2, Shimoga and called upon the Assessee to comply with the requirements mentioned in notice u/s.142(1) of the Act dated 25.7.2011 and that if the Assessee fails to do so, the assessment will be completed u/s.144 of the Act ex parte to the best of AO’s judgment. To this notice, the Assessee again sent a letter dated 5.9.2011 taking a stand that notice u/s.143(2) of the Act issued by the ITO, Ward-2, Shimoga was not valid because he was not a predecessor AO of the Assessee and that the return of income had not been filed before him by the Assessee. The AO in reply to the letter dated 5.9.2011 of the Assessee informed the Assessee by his letter dated 25.11.2011 that the notice u/s.143(2) of the Act issued by the ITO, Ward-2, Shimoga dated 25.8.2010 was valid in law and that the objection of the Assessee in this regard was untenable. To this notice the Assessee by reply dated 1.12.2011 and 3.12.2011 informed the AO that the AO i.e., ITO, Ward-3, Davanagere does not have jurisdiction as there is no order from the Chief Commissioner of Income Tax u/s.127 of the Act, transferring the case from ITO, Ward-2, Shimoga to ITO, Ward-3, Davanagere. The AO ITO, Ward-3, Davanagere by his notice u/s.142(1) informed the Assessee that if no reply is received to the points set out in the notice u/s.142(1) of the Act, the proceedings would be concluded ex parte. To this notice again the Assessee sent a reply dated 26.12.2011 stating that the AO does not have jurisdiction and that in the absence of a notice u/s.143(2) of the Act, no assessment can be framed u/s.143(3) of the Act.
The AO proceeded to frame an assessment u/s.144 of the Act, observing as follows:- “8.0 Vide this office letter dated 22.12.2011, following proposal for additions were also put forth to the assessee calling for his objections. For the sake of clarity, the relevant portion of the letter is reproduced here below: Please refer to the above 2.0 Vide your reply dated 01.12.2011 & 03.12.2011, the question of jurisdiction was once again reiterated. However, the said issue has already redressed through this office letters mentioned above. It is once reiterated that, the pre-assessment notice u/s.143(2) was served by Income-tax Officer, Ward-2, Shimoga on 31.08.2010, as laid down in the section 282 of the Income-tax Act, 1961, since the PAN was lying with him. Subsequently, at your instance, the case · was transferred to this ward. Therefore, the proceedings are in order and all objections are disposed off accordingly. 3.0 The assessment in your case is getting barred by limitation on 31.12.2011. As there is no proper compliances to the notices issued, I have no option but to proceed with ex-parte assessment based on the material available on record . It is proposed to make the following additions. In the interest of natural justice, you are hereby given final opportunity to file your objections if any for the proposed additions for which your case is posted for hearing on Monday, the 26th December, 2011 at 11.30AM.
4.0 Since you have not furnished the books of account, bills and vouchers, the following expenses debited to P & L account, are proposed to be disallowed to the extent of 20% in the absence of details and treating them as not genuine i. Workers Salary Rs.1,72,800/- ii. Electricity Charges Rs. 29,769/- iii. Telephone & Mobile Charges Rs. 30,475/- iv. Generator Diesel & Maintenance Rs.1,28,822/- v. News paper charges Rs. 1,279/- vi. Shop Expenses Rs. 13,850/- vii. Printing & Stationery Charges Rs. 4,046/- viii. Travelling Expenses Rs. 30,500/- ix. Vehicle Maintenance Rs. 12,550/- TOTAL Rs.4,24,091/-
I propose to disallow 20% of expenditure of Rs.4,24,091/- which works out to Rs. 84,818/- and the same will be added to your total income. 5.0 As per the information obtained from Asst. Commissioner of Commercial Taxes, LVO-470, Harihara, the total turnover of your petrol bunk business is Rs.5,62,33,723/-. However, the same is not finding place in your return of income. Therefore, it is proposed to estimate the net profit from this business at 1% of gross turnover, which works out to Rs.5,62,337/-, after taking into consideration the nature of trade. 6.0 The Account No. 225010100088965 of Axis Bank, is not reflected in your final accounts. It is therefore to propose to add the peak credits in the account and brought to tax, which works out to Rs.4,70,642/-. 7.0 In the Account No. 225010200006385 of Axis Bank, there are receipts from HATSUN Agro Product Ltd, this business is not finding any place in final accounts, the total of such credits from Hatsun Agro Product Ltd amounts to Rs. 1,51,28,800/-. In the absence of any proper explanation, it is proposed to estimate the income from this transaction at 5% of the gross receipts which works out to Rs.7,56,440j- and the same is proposed to be brought to tax.
8.0 The total additions as per above paragraphs works out to Rs.18,74,237/-. You may file objections, if any, on or before 26.12.2011. 9.0 The assessee in his reply dated 26.12.2011issilent on the issues. He has not objected to the proposed additions at all. Therefore, it is presumed that he has no objections for the proposed additions. Accordingly, the assessment is concluded as under: Total income returned 2,96,680 Addition: As discussed in para 4 of letter dated 22.12.2011 84,818 As discussed in para 5 of letter dated 22.12.2011 5,62,337 As discussed in para 6 of letter dated 22.12.2011 4,70,642 As discussed in para 7 of letter dated 22.12.2011 7,56,440 18,74,237 Total Income assessed 21,70,917 5. Aggrieved by the order of the AO, the Assessee preferred appeal before CIT(A) reiterating contentions as were put forth before AO. The CIT(A) upheld the order of the AO observing as follows:- “4. The facts of the case are being reproduced for brevity. The appellant was regularly riling his Return of Income with PAN AQJPK3729P with ITO, Ward-2, Shivamogga. For the Asst.Year 2009-10, the appellant suo moto had decided to file the Return of Income with ITO, Ward-3, Davangere on 05/10/2009 vide Ack.No.0103007689. The Return of Income was selected under CASS and since the PAN was lying with the ITO, Ward-2, Shivamogga, the AO had issued the notice u/s 143(2). The appellant is questioning the Jurisdiction of the ITO, Ward-2, Shivamogga to issue this notice. This ground is not germane to the appeal. Yet the same 1s discussed only to reveal the mindset of the appellant. As the PAN was lying with ITO Ward-2, Shivamogga, he has rightly exercised Jurisdiction. If the appellant is changing his address, then he has to get the address in his PAN changed. He has failed to do so. Thus, ground is rejected.
In response to notices issued by the ITO, Ward-2, Shivamogga, the assessee responded that he has filed his Return of Income with ITO, Ward-3, Davangere along with details. In response, the ITO, Ward-Z, Shivamogga transferred the case to ITO, Ward-3, Davangere. The appellant is disputing this transfer. When the Officer having PAN had assumed Jurisdiction and issued notices, the appellant resisted, claiming ITO, Ward-3, Davangere had jurisdiction. Now the appellant is estopped from questioning the Jurisdiction of ITO, Ward-3, Davangere. It is held that ITO, Ward-3, Davangere has assumed rightful jurisdiction. This ground also fails.
6. The appellant also questions the proprietary of the AO to pass orders u/ s 144 without sending a proposition notice. Para 8 of the assessment order clearly reproduces the proposition notice sent by the AO. Therefore, this ground also fails. 7. The appellant has also raised an issue that the assessment is barred by limitation u/s 153(1)(b) of the Act. The AR has not read provision of Sec. l53(1)(b) properly. This is applicable to Return of Income filed u/s 139(4) or 139(5). 8. There are many other issues like non-serving of notices, evidences etc., which are clearly dealt with by the AO in his order and are found not borne on records, therefore the same is not dealt with as the same has no bearing on the outcome of appeal. 9. On merits, the appellant submits as under: “6. Whether the assessing authority has jurisdiction to make impugned additions of Rs.18,74,237/- (vide Para No.9 of assessment order dated 30.12.2011) to the declared presumptive business income at 35.97% U/s 44AF of the Act as declared by the Income-tax Appellate Tribunal in the case of RELIABLE SURFACE COATINGS V/S ASST.CIT. reported in (2011) 7 ITR (Tr.) 183?” Except this averment, he has not submitted any details. It is clearly seen that the AO had sent a proposition letter and the appellant had not complied to such notices. Therefore, the AO had been compelled to make the addition as proposed. Before me also, no details have been produced except stating that it is wrong. There is no case for substituting the AO's best Judgement with mine. Therefore, this ground is also dismissed.
In the result, the appeal stands dismissed.”
Aggrieved by the order of the CIT(A), the Assessee is in appeal before the Tribunal. We have heard the submission of the learned counsel for the Assessee and the learned DR. The learned counsel for the Assessee submitted that the assessment order is barred by limitation u/s.153(1)(b) of the Act. The said provisions reads as follows:-
Time limit for completion of assessments and reassessments. “153. (1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of— (a ) two years from the end of the assessment year in which the income was first assessable ; or (b ) one year from the end of the financial year in which a return or a revised return relating to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, is filed under sub-section (4) or sub-section (5) of section 139, whichever is later :”
According to the learned counsel for the Assessee since Section 153(1)(b) uses the expression “commencing on the 1st day of April, 1988 and since the Assessment year in this appeal is after 1st day of April, 1988, i.e., 2009-10, the said provision will apply to the case of the Assessee and since the order of assessment was not passed within the period so laid down, the order of assessment should be annulled as illegal. He placed reliance on the decision of the Hon’ble Supreme Court in the case of Smt.Tarulata Shyam and others Vs. CIT 108 ITR 345 (SC) wherein it was held that taxing statutes when they are clear and unambiguous, there is no scope for importing into the statute words which are not there and that if there is “causus omissus”, the defect can be remedied only by legislation and not by judicial interpretation.”
I have considered the above submission and I am of the view that on a plain reading of the provisions of Sec.153(1)(b) of the Act, it is evident that the said provisions applies only to AY 1988-89 or any earlier Assessment year and cannot be applied for AY 2008-09 as contented by the learned counsel for the Assessee. The assessment order was passed in the present case on 30.12.2011 and is well within the period of limitation as contemplated by the provisions of Sec.153(1)(a) of the Act. I am of the view that the AO rightly assumed jurisdiction and was well within his power to frame the assessment u/s.143(3) of the Act. We therefore find no merit in the argument advanced on behalf of the Assessee.
10. The next argument of the learned counsel for the Assessee was that without an order of transfer u/s.127 of the Act having been passed by the Commissioner of Income Tax, the case of the Assessee for AY 2009-10 could not have been transferred from ITO, Ward-2, Shimoga to ITO, Ward- 3,Davangere. In this regard reliance was placed by the learned counsel for the Assessee on the decision of the Hon’ble ITAT Delhi Bench in the case of M/s. KIE Infrastructures & Projects Pvt.Ltd. Vs. ITO, order dated 17.4.2015 wherein it was held that when the ITO, Agra had jurisdiction over the Assessee he himself cannot transfer the file to ITO, Ward-5, New Delhi merely on the basis of change of address in PAN without there being an order by the Chief Commissioner, under Sec.127 of the Act, which was held to be a mandatory requirement. On that ground the order of assessment was held to be illegal. It was the submission of the learned counsel for the Assessee that the aforesaid decision is squarely applicable to the facts of the Assessee’s case and therefore following the said decision, the order of assessment in the present case should be annulled as illegal and void.
I have given a very careful consideration to the submission made by the learned counsel for the Assessee and I am of the view that the facts of the case of the Assessee are different and the decision of the Hon’ble Delhi Bench cited by the learned counsel for the Assessee will not be applicable. In that case the AO at Agra on his own transferred the case to AO, New Delhi and therefore the Tribunal held that the AO cannot suo motu transfer the file. Admittedly, in the present case the Assessee on his own filed return of income before the ITO, Ward-3, Davangere, even though as per the PAN the jurisdiction was with ITO, Ward-2, Shivamogga. When ITO, Ward-2, Shivamogga issued notice u/s.143(2) of the Act dated 25.8.2010, the Assessee submitted that ITO, Ward-3, Davangere had jurisdiction over the Assessee. Thereafter the Assessee in reply to the notices u/s.142(1) of the Act took a plea that notice u/s.143(2) of the Act ought to have been issued by ITO, Ward-3, Davangere and since the notice u/s.143(2) of the Act dated 25.8.2010 was issued by the ITO, Ward-2, Shimoga, the ITO, Ward-3, Davangere cannot frame an assessment u/s.143(3) of the Act. It is for the first time in his letter dated 3.12.2011 that the Assessee took a stand that there has to be an order u/s.127 of the Act for transfer of jurisdiction from ITO, Ward-2, Shivamogga to ITO, Ward-3, Davangere. The Assessment was getting time barred on 31.12.2011. The Assessee thus acquiesced to the action of the AO at Davangere in framing assessment for AY 2009-10. The Assessee never took a stand that the AO at Davangere had no jurisdiction. The Assessee cannot be allowed to blow hot and cold at the same breath. I am of the view that the AO at Davangere had jurisdiction and he validly assumed jurisdiction and was well within his powers to pass the order of assessment. We find no merits in the argument advanced by the Assessee.
On merits of the addition made by the AO, no arguments were advanced by the learned counsel for the Assessee except stating that the presumptive income declared by the Assessee as per sec.44AF of the Act ought to have been accepted. I am of the view that the AO has given reasons for his conclusions in determining the total income of the Assessee and there is no rebuttal of those conclusions drawn by the AO. I therefore confirm the action of the AO in framing the order of assessment as he did in the present case. I find no merits in the plea raised by the Assessee in this behalf.
I find no grounds to interfere with the order of the CIT(A). Consequently, the appeal of the Assessee is dismissed.
In the result, appeal by the Assessee is dismissed.
Pronounced in the open court on this 20th day of December, 2019.