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01-07-2019, Haryana Warehousing Corporation, Section 147, Tribunal Chandigarh

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1 week 4 days ago #9966 by amit
Section - 147, 148, 35AD, 151(1)
Order Date - 01-07-2019
Favouring - Assessee
Court - Tribunal Chandigarh
Appellant - Haryana Warehousing Corporation
Respondent - ACIT
Justice - SANJAY GARG JM & ANNAPURNA GUPTA AM
Citation - 719Taxpundit55
Appeal No. - ITA No.1374/Chd/2016
Asstt. Year - 2010-11

Order

PER : Sanjay Garg

The present appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), Panchkula [(hereinafter referred to as ‘CIT(A)’] dated 20.10.2016, passed u/s 250(6) of the Income Tax Act, 1961 (in short ‘Act’).

2. The assessee in this appeal has taken the following grounds of appeal:

“1. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned AO for wrong initiation of the proceedings u/s 148 of the Act for the assessment year 2010-11 when the reasons to believe have been recorded for the assessment year 2014-15 and no reasons to believe supplied for the assessment year 2010- 11.

2. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for wrong initiation of the proceedings u/s 148 of the Act without compliance of the proviso to Section 147 as there is no allegation in the reason recorded to issue the notice u/s 148 that there is a failure on the part of the assessee to make full and true disclosure in the return of income which has resulted in escapement of the income alleged whereas the assessee has disclosed the deduction u/s 3 5AD of the Act in the return of income and allowed in the assessment u/s 143(3) of the Act.

3. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for wrong initiation of the proceedings u/s 148 of the Act in case of change of opinion u/s 147 of the Act.

4. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for failure to provide any fresh tangible material which has come to his notice and requires reopening of the assessment as per judgment of the Hon'ble Supreme Court cited as 320 ITR 561 that the reasons must have a link with the formation of the belief.

5. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for failure to dispose off preliminary objection no. 6 as such the order passed without disposing off preliminary objections fully deserves to be set aside in view of the judgment of the Hon'ble Supreme Court cited as GKN Driveshafts (India) Ltd Vs. Income Tax Officer & Another (2003) 259 ITR 19(SC).

6. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for adding Rs.20,98,92,952/- under Section 35AD of the Act without going into the facts and merit of the case.

7. That the appellant reserves the right to add, amend or delete one or more of the grounds of appeal before the appeal is disposed off.”

3. Apart from that, the assessee had taken following additional grounds of appeal:

“1. That from the findings in para 5 of the order of learned CIT(A) Panchkula it is clear that no sanction of the Principal CIT Panchkula was taken after recording the reasons for initiating proceedings u/s 147 of the Income tax Act, 1961 to issue notice u/s 148 on 28.10.2015 under section 151(1) of the Income Tax act, 1961. Hence the reopening u/s 147 of the Act without sanction u/s 151 after recording the reasons on 28.10.2015 is bad in the eyes of law and be declared as null and void.

2. That reasons for initiating proceedings u/s 147 of the Income tax Act, 1961 to issue notice u/s 148 were not supplied to the appellant for which the sanction was obtained from the Principal CIT Panchkula on 15.10.2015.”

Ground No .1 :

4. Ground No.1 is a legal ground, vide which the assessee has contested the validity of reopening of the assessment by the A.O. invoking the provisions of section 147 read with section 148 of the Act alleging that the A.O. has recorded the reasons to believe that the income of the assessee has escapedassessment for assessment year 2014-15, whereas on the basis of said reasons recorded, the assessment for the year under consideration i.e. assessment year 2010-11 has been reopened. That even the reasons to believe have not been supplied to the assessee.

5. We have heard the rival contentions on this issue. The Ld. DR in this respect has invited our attention to page Nos.4 to 8 of the Paper Book filed by him and submitted that the A.O. has recorded the reasons that the income of the assessee has escaped assessment for assessment year 2010-11 i.e. the assessment year under consideration.

6. We have gone through the aforesaid documents relied upon by the Ld DR. We find that in the Performa, which was sent by the A O. to the Principal Chief Commissioner of Income Tax, Panchkula seeking permission to issue notice u/s 148 of the Act to the assessee, assessment year has been mentioned “assessment year 2010-11”. Further the A.O. recorded the reasons second time on 28.10.2015 wherein though in the title the assessment year has been mentioned as “assessment year 2014-15”, however, from the reading of the

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