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01-03-2019, Shri Rajlaxmi Denim, Section 124(3), 292BB, Tribunal Jaipur

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2 weeks 1 day ago #8753 by amit
Section - 124(3), 292BB, 153A(1), 132, 139, 147, 151, 153, 148
Order Date - 01-03-2019
Favouring - Revenue
Court - Tribunal Jaipur
Appellant - DCIT
Respondent - Shri Rajlaxmi Denim
Justice - RAMESH C SHARMA, AM & VIJAY PAL RAO, JM
Citation - 319Taxpundit193
Appeal No. - ITA No. 1134/JP/2018
Asstt. Year - 2015-16

Order

PER : VIJAY PAL RAO

This appeal by the revenue is directed against the order dated 26/7/2018 of ld. CIT(A), Ajmer for the A.Y. 2015-16. The revenue has raised following grounds:

“1. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in quashing the assessment order and not considering the facts that the assessee filed return with the ITO, Ward-3, Bhilwara and the same ITO issued notice u/s 143(2). Therefore, notice u/s 143(2) was issued validly by the ITO, Ward-3, Bhilwara. Subsequent to issue of notice case was transferred to ITO, Ward-4, Bhilwara who has ultimately passed the order u/s 143(3) of the I.T. Act.

2. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in quashing the assessment order and in not considering the provisions of section 124(3) of the II Act wherein it is provided that if an assessee questions the jurisdiction of an assessing officer he has to raise objection within one month of the issue of notice u/s 143(2). However, no such objection was raised by the assessee and assessee filed reply to questionnaire before the ITO, Ward-3, Bhilwara on 26.05.2016 and before the ITO, Ward-4, Bhilwara is on 27.11.2017.

3. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified quashing the assessment order and in not considering the provisions of section 292BB, wherein it is provided that if an assessee appearing in proceedings and co-operated in any inquiry to an assessment and has not ra sed any objection about such issue of notice then he shall be precluded from doing so later on after completion of assessment.

4. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in quashing the entire assessment proceedings on technical ground without going in to the merit of the case.

5. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in admitting and deciding the appeal filed by the assessee when the assessee has not approached the CIT(A) with clean hands by not disclosing either before the AO or before the CIT(A) the fact of search & seizure action u/s 132(1) of the Income tax Act having carried out in the case of the assessee on 27.08.2017, during the pendency of assessment proceedings.

6. Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in not declaring that owing to the search & seizure action in the case of the assessee carried out on 27.08.2017, the pending assessment u/s 143(3) got abated in accordance with the provisions of 2nd proviso to section 153A(1) of the Income tax Act.

7. Whether on the facts and circumstances of the case and in law, it was not incumbent upon the CIT(A) to decide the merits of the additions to the total income of the assessee made by the assessing officer despite holding the assessment u/s 143(3) to be invalid in the absence of any notice u/s 143(2) of the Income tax Act issued by ITO, Ward-4, Bhilwara.

The appellant crave, leave or reserving the right to amend modify, alter add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.”

'2. The assessee e-filed its return of income on 28/9/2015 declaring total income of Rs. NIL. The said return was filed by the assessee with the ITO, Ward (3), Bhilwara, accordingly, a notice U/s 143(2) of the Income Tax Act, 1961 (in short the Act) was issued by the ITO, Ward (3), Bhilwara on 10/5/2016. A notice U/s 142(1) of the Act was also issued on 11/5/2016 fixing the hearing of scrutiny assessment on 26/5/2016. In response to the notice, the assessee filed written submissions on 26/5/2016 thereafter the case was transferred to the jurisdiction of Assessing Officer i.e. ITO, Ward (4), Bhilwara, who after issuing the notice U/s 142(1) of the Act completed the assessment U/s 143(3) of the Act on 29/12/2017. Whereby an addition of Rs. 20.50 crores was made U/s 68 of the Act on account of share premium received by the assessee company.

3. The assessee challenged the action of the Assessing Officer before the ld. CIT(A) and also raised an objection against the validity of the assessment for want of notice U/s 143(2) of the Act issued by the second A.O. i.e. ITO, ward (4), Bhilwara who has completed the assessment.

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