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Income Tax Appellate Tribunal, DELHI BENCH “F”: NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI
O R D E R PER AMIT SHUKLA, J.M.
The aforesaid appeal has been filed by the assessee against impugned order dated 10.3.2015, passed by CIT(Appeals) Ghaziabad for the quantum of assessment passed u/s 144/148 for the assessment year 2009-10. In the grounds of appeal the assessee has raised following grounds:- 1. “That notice u/s 148 issued on 10.2.2012 requiring the assessee to file income tax return within 15 days was not served on the assessee. Even otherwise not being a valid and legal notice non compliance did not constitute a valid and legal cause for making an assessment u/s 144 of the I.T. Act.
2. The subsequent notices u/s 143(2) & 142(1) were also not served on the assessee as required u/s 282 of I.T. Act. Thus on facts and in law non-compliance of such notices did not constitute a valid and legal ground warranting an assessment u/s 144 of I.T. Act.
That the assessment framed u/s 144/148 of I.T. Act being void, illegal and without jurisdiction deserves to be quashed.
4. That the deposit of Rs. 66,00,000/- was out of known sources and no part of the deposit was out of unexplained sources. The addition 'of Rs.66,00,000/- as unexplained cash credits made by the Ld. A.O. and sustained by the Ld. CIT(A) deserves to be deleted being void, illegal and without jurisdiction.
That the levy of interest u/s 234A & 234B of I.T. Act being void, illegal and without jurisdiction and at any rate very excessive deserves to be quashed.”
At the outset it is noticed that u/s 148 was issued for reopening the case for the assessment year 2009-10, vide notice dated 10.2.2012, which has been mentioned in the assessment order that it was served. However no compliance was made by the assessee. Similarly various other notices u/s 143(2) and 142(1) was issued but no compliance was made by the assessee and accordingly, the assessment was completed at an income of Rs. 66,00,000/- on account of cash deposits in the bank account. Before the Ld. CIT (A), assessee had filed detailed submissions alongwith petition for admission of additional evidence under rule 46A, which has been rejected by the Ld. CIT (A) and entire additions have been upheld.
3. Now before us, the assessee has challenged the validity of proceedings u/s 148 and also the impugned assessment order on the ground that, firstly, no notice u/s 148 was served upon the assessee nor any notice u/s 143(2) or 142(1) as mentioned in the assessment order; and secondly, Ld. CIT (A) has erred in law and on facts in rejecting the additional evidence which assessee had filed to substantiate its case on merits. However we find that no such specific ground has been raised on the legal issues before the Ld. CIT (A) except for stating that order of the A.O. was bad in law. Before us the Ld. Counsel submitted that the validity of proceedings u/s 148 goes to the very root of the issue, therefore, the said ground needs to be admitted and should be adjudicated by this Tribunal. Apart from that he submitted that Ld. CIT (A) was not justified in rejecting the assessee’s petition for admission of additional evidence, therefore in the interest of justice, he submitted that the entire matter should be restored back to the file of the A.O. to deal and decide the issue afresh and in accordance with the provision of law.
On the other hand Ld. DR submitted that there is a non compliance by the assessee before the A.O. and therefore now at this stage, assessee cannot challenge the validity of reopening u/s 148 and also these issues have not been raised before the Ld. CIT(A). Thus the legal grounds raised by the assessee should be rejected out rightly. On merits he submitted that matter can be restored back to the file of Ld. CIT (A) to decide afresh and in accordance with law.
5. After considering the rival submissions and on perusal of the impugned order as well as material before us, we are of the opinion that so far as the validity of reopening is concerned, the same is purely a legal issue and raises a jurisdictional point which can be raised at any stage. Since, the assessee has not challenged this validity before the AO or before Ld. CIT (A), therefore, we are of the opinion that this matter should be restored back to the file of the AO who shall deal and decide the legal issue of the validity of reopening u/s 147 as well as service of notice u/s 148 and notice u/s 143(2). Apart from that since notice could not be served upon the assessee, no representation could be made and that is why assessee filed additional evidence before first appellate authority. Thus, in the interest of natural justice, we feel that on merits also the matter should be restored back to the file of A.O. who shall deal and consider all the additional evidences filed by the assessee before the Ld. CIT(A) and decide the issue afresh and in accordance with law after giving due opportunity of the hearing to the assessee. The assessee is directed to comply with all the notices and should ensure that proper representation is made before the A.O., so that proper assessment of the income of the assessee can be framed. Accordingly, all the issues raised in the grounds of appeal are remanded back to the file of the A.O. to be decided afresh and in accordance with law.
In the result appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 7th November, 2017.