M/S NITESH BERA (HUF) ,BANGALORE vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-5(2)(1), BANGALORE

Date of hearing : 10/06/2019 Date of pronouncement : 21/06/2019 O R D E R

Per PAVAN KUMAR GADALE, JM:

2. The appellant denies itself liable to be assessed to total income of Rs. 39,68,978/-as against the returned income of Rs. 27,35,320/- on the facts and circumstances of the case.

I) Legal Grounds

3. Grounds on re-opening The learned CIT(A) was not justified in appreciating that the a. notice issued under section 148 of the Act, was bad in law. b. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the order of assessment is bad in law and void-ab-initio for want of requisite jurisdiction especially, the mandatory requirements to assume jurisdiction under section 148 of the Act did not exist and have not been complied with and consequently the entire assessment is bad and unsustainable in law and thus the assessments requires to be cancelled on the facts and circumstance of the case. c. The learned Commissioner of Income-tax [Appeals] was not justified in law, in not setting aside the order of assessment as bad in law, as the notice U/s 148 has stated to "assess" the income, when an assessment has already been done under section 143(3) of the Act, hence demonstrating lack of application of mind on the part of the assessing officer thus vitiating the assessment proceedings on the facts and circumstances of the case. d. The learned Commissioner of Income-tax [Appeals] was not justified in law in appreciating that the appellant has disclosed fully and truly all material facts necessary for the assessment, on the facts and circumstances of the case. & 898/Bang/2018 Page 3 of 10 4. Grounds on reason to believe a. The learned CIT(A) was not justified in appreciating that reopening the case of the appellant merely on oral statement of Mr. Mukesh Choksi which are nothing but sweeping generalisation and the information received from DDIT (Investigation) and in the absence of any cogent material to pinpoint that the appellant has indulged in any bogus transaction amounts to only reason to suspect and not reason to believe on the facts and circumstances of the case. b. The learned Commissioner of Income-tax [Appeals] has not appreciated the. fact that the learned assessing officer was not justified in reopening the case of the appellant u/s 147 of the act since there was no new material which has come to the hands of the learned assessing officer, to form an opinion that income had escaped assessment and hence was a mere change of opinion, which was not a permissible cause to issue a notice under section 148 of the Act. 5. Grounds on sanction a. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the order of assessment is void ab initio as proper sanction has not been obtained as contemplated under section 151(1) of the Act and hence the entire proceedings are without jurisdiction and liable to be quashed.

b. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the order of assessment is bad in law as the assessing officer has not provided the details and documents regarding the obtaining of approval and hence the entire order of assessment is vitiated, bad in law and liable to be cancelled on the facts and circumstance of the case,

9. Grounds on violation of principles of natural justice a. The learned Commissioner of Income-tax [Appeals] was not justified in not setting aside the order as the cross examination of Mr. Mukesh Choksi was not provided to the appellant for rebuttal, hence vitiating the assessment proceedings as the sole reason of re-opening remained unverified on the facts and circumstances of the case. b. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the order is vitiated on account of violation of principles of natural justice in as much as the appellant was not afforded opportunity of cross-examination of the person relying on whose statement the case of the appellant was re-opened and the additions were sought to be made in the assessment, even though such opportunity was specifically requested for by_ the appellant on the facts and circumstances of the case. & 898/Bang/2018 Page 5 of 10 10. Grounds on Merit a. Without prejudice, the learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the assessing officer is not justified in taking the total income at Rs. 39,68,978/- instead of Rs. 35,08,670 on the facts and circumstances of the case. b. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the appellant has already accounted for the above transaction and declared short term capital gain arising therein in the return of income on the• facts and circumstances of the case. c. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the assessing officer failed to take into consideration that the transactions entered into by the appellant are all genuine transactions which are duly reflected in the demat account and hence it could not have been branded as bogus and accommodation entries on the facts and circumstances of the case. d. The learned Commissioner of Income-tax [Appeals] was not justified in law in appreciating the fact that the learned assessing officer also failed to take into consideration that by the very admission of Mr. Mukesh Choksi, the companies operated by him were genuine up to 2008 when the appellant has actually engaged in the transactions with those entities on the facts and circumstances of the case. e. The learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the assessing officer is not justified in terming the transactions as bogus on the basis of conjectures, surmises and presumptions and without establishing the same with cogent material and completely disregarding the material placed on record by the appellant in the facts and circumstances of the case. f. Without prejudice, if at all the entries are held to be only accommodation entries, the entire sale consideration could not have been brought to tax, but the capital gain offered to tax at lower rate of tax 10% could have only been taxed at the regular rate of tax on the facts and circumstances of the case. g. Without prejudice, the learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the assessing officer ought to have reduced income already offered to tax under short & 898/Bang/2018 Page 6 of 10 term capital gain from the sale consideration and brought to tax only the balance amount which is not offered to tax on the facts and circumstances of the case. h. Without prejudice, the learned Commissioner of Income-tax [Appeals] has not appreciated the fact that the assessing officer ought to have allowed the purchase cost incurred by the appellant against the sale consideration brought to tax on the facts and circumstances of the case. i. The appellant denies the liability to pay interest under section 234A, 234B. and 234C of the Act in view of the fact that there is no liability to additional tax as determined by the assessing officer. Without prejudice, the rate, period and on what quantum the interest has been levied are not in accordance with the law and are not discernable from the order and hence deserves to be cancelled on the facts and circumstances of the case. j. The appellant craves leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal as may be necessary at the time of hearing. k. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity.”

6. We heard the rival submissions and perused material on record. Ld. AR submitted that the assessee has filed objections to the issue of notice u/s 148 and objections were disposed of by the AO referred at page 53 of the paper book. The main & 898/Bang/2018 Page 8 of 10 contention of the ld. AR is that there is no service of notice u/s 143(2) of the Act. When a query was raised to ld. AR whether a ground was raised before the CIT(A) on this issue, ld. AR referred to ground No.9 as under: “9 The learned Assessing Officer has not assumed proper jurisdiction to make an assessment in the instant case as the mandatory notice /s 143(2) of the Act was neither issued nor served on the appellant within the stipulated time in accordance with law on the facts and circumstances of the case.”

The ld. AR emphasized that the CIT(A) has not given a finding on the issue of notice u/s 143(2) and he read the order of the CIT(A). Nowhere we find that the CIT(A) has dealt on disputed issue and gave his observations or specific findings in respect of issue of notice u/s 143(2) of the Act. Therefore, considering the overall facts and circumstances and other details filed in the course of hearing, we are of th substantive opinion that the CIT(A) has not given decision/adjudicated the ground raised before him and ld.AR has not argued other grounds of appeal. Therefore, in the interests of substantial justice, we restore the entire disputed issue to the file of the CIT(A) to adjudicate afresh and pass a speaking and reasoned order and allow the grounds of appeal for statistical purposes. & 898/Bang/2018 Page 9 of 10

7. In the result, the assessee’s appeal ( ) is allowed for statistical purposes.

8. We shall now take up for assessment year 2010-11. Ld. AR’s contention in the course of hearing proceedings that the assessee has filed objections to Reasons for issuing notice u/s 148. Further, ld. AR emphasized that the AO has not disposed of the objections raised in respect of issue of notice u/s 148 of the Act and filed paper book in support of the submissions as proper procedure was not followed and prayed for allowing the assessee’s appeal on merits. Contra, learned DR relied on the orders of the CIT(A).

argued by the ld. AR is in respect of non-disposal of objections raised in respect of issue of notice us/ 148 of the Act. We found that the AO is required to dispose of the objections raised in the course of re- assessment proceedings. Ld. AR demonstrated that the assessee has raised ground of appeal before CIT(A) on the issue of non-disposing of the objections. We perused the order of the CIT(A). At page 3 ground of appeal No.(f) was raised by the assessee Whereas AO passed the order without disposing off the objections. We found strength in the submissions of the ld. & 898/Bang/2018 Page 10 of 10. AR as there is no observation or finding by the CIT(A) on this ground of appeal. Accordingly, we restore the disputed issue to the file of the CIT(A) to adjudicate afresh and give a proper findings and pass a speaking and reasoned order and allow the ground of appeal of the assessee for statistical purposes.

Order pronounced in the open court on 21st June, 2019.