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06-09-2019, Gulab Badgujar (HUF), Section 147, 148, 144, Tribunal Pune

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5 days 5 hours ago #10769 by amit
Section - 147, 148, 144, 292B
Order Date - 06-09-2019
Favouring - Assessee
Court - Tribunal Pune
Appellant - Gulab Badgujar (HUF)
Respondent - ITO
Justice - SUSHMA CHOWLA, JM & ANIL CHATURVEDI, AM
Citation - 919Taxpundit90
Appeal No. - ITA No.1663/PUN/2014
Asstt. Year - 2006-07

Order

PER : SUSHMA CHOWLA, JM:

The appeal filed by assessee is against order of CIT(A)-1, Nashik, dated 22.08.2014 relating to assessment year 2006-07 against order passed under section 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short „the Act‟).

2. The assessee has filed the following concise grounds of appeal:-

1. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer has erred in issuing notice u/s 147 of the Income Tax Act, 1961 especially in view of the fact that proceedings were initiated as a result of search action u/s 132 of the Income Tax Act, 1961 on Shri Anant Keshav Rajegaonkar and the correct proceedings ought to have been initiated u/s 153C of the Income Tax Act, 1961. In view of this your appellant prays that the proceedings initiated u/s 147 of the Income Tax Act, 1961 are bad in law and therefore needs to be quashed and entire order needs to be cancelled.

2. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer has erred in reopening the reassessment proceedings u/s 147of the Income Tax Act, 1961 by presuming incorrect facts that sale of jewellery for a sum of Rs.33,42,078/- has escaped assessment without realising the fact that your appellant has offered this income in Income Tax Return which was filed much before the date of search, further Learned CIT (Appeals) erred in not adjudicating the issue of invalid reopening proceedings u/s 147 of the Income Tax Act, 1961.

3. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer has erred in passing the order u/s 143(3) .w.s 147 without disposing off objections raised by the appellant and without passing speaking order which is prerequisite as per the direction of Hon'ble Supreme Court in the case of GKN Driveshaft (India) Ltd. Vs. ITO [2003 (259) ITR 19 (SC)]. Therefore, such order passed is bad in law.

4. On the facts and in the ircumstances of the case and in law, the Learned Assessing Officer has erred in treating Rs.33,42,078/- as undisclosed receipt by disregarding appellants contention in this regards.

5. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer has erred in making an addition of Rs.33 42 078/- without realising the fact that corresponding Capital Gain on account of sale of jewellery to the tune of Rs.26,80,205/- was al eady offered by your appellant for taxation and therefore further taxing the Gross consideration one more time has led to taxing the same amount twice.

6. Without prejudice to above grounds, on the facts and in the circumstances of the case and in law Learned CIT(Appeals), Nashik has erred in passing the Appellate order without giving proper opportunity of hearing and without providing opportunity of cross examination of the persons whose statements are used against the appellant.

7. Without prejudice to above to the above ground, on the facts and in the circumstances of the case and in law, the CIT (Appeals), Nashik has erred in not allowing the claim of indexation on cost of assets which your appellant has not claimed inadvertently while filing the return. Your appellant seeks appropriate relief.

8. On the facts and in the circumstances of the case and in law, the Learned CIT (Appeals), Nashik erred in making an enhancement of Income of Rs.1,80,63,073/- being entire opening balance of capital account which represents earlier years income, and such action being beyond the time limit prescribed in law, is bad in law and is also beyond the powers of Learned CIT(Appeals).

9. On the facts and in the circumstances of the case and in law, the Learned CIT (Appeals), Nashik has erred in making an enhancement on a new source of income which is beyond his powers u/s 250 of the Income Tax Act, 1961 and therefore entire addition made on account of enhancement of income is bad in law.

10. On the facts and in the circumstances of the case and in law, the Learned CIT '(Appeals), Nashik has erred in directing the Assessing officer to initiate prosecution proceedings which your honour is requested to cancel.

11. On the facts and in the circumstances of the case and in law, the Learned CIT (Appeals), Nashik has erred in directing the Assessing officer to initiate penalty proceedings u/s 271(1)(c) on enhanced income of Rs.1,80,63,073/- which your honour is requested to cancel.

3. The learned Authorized Representative for the assessee has raised an additional ground of appeal, which reads as under:-

“On the facts and in the circumstances of the case and in law the Ld. AO erred in passing order u/s. 143(3) r.w.s. 147 without issuing notice u/s. 143(2) this being prerequisite condition, entire order is voi-ab-initio and deserves to be quashed.”

4. The plea of learned Authorized Representative for the assessee before us is that the issue raised vide additional ground of appeal is the jurisdictional issue which goes to the root of the assessment and is purely legal, hence the additional ground of appeal be decided first.

5. We find that the additional ground of appeal raised by assessee is against the validity of assessment framed under section 143(3) r.w.s. 147 of the Act. The said issue decides the jurisdiction of Assessing Officer to complete assessment and does not require any investigation into facts, hence the same is admitted for adjudication.

6. Briefly, in the facts of the case, the Assessing Officer recorded reasons for reopening the assessment and issued notice under section 148 of the Act. Thereafter, the Assessing Officer issued notice under section 142(1) of the Act. However, no return of income was filed by assessee, though he participated in the assessment proceedings. Consequent thereto, order was passed under

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