1.     CIT Vs. Shri Shyam Sunder Infrastructure (P) Ltd, I.T.A. No. 236/2014, Date of Decision: 04.02.2015, The High Court of Delhi

Issue:

Whether the assessee can question the jurisdiction of the AO, in case the assessee has reiterated that it would stand by original return filed earlier in response to notice u/s 148? Held: No

Brief facts:

The original assessee, “Shalom Exim Pvt. Ltd” filed the returns on 30.05.2003  which was incorporated on 27.02.2003. Its name was subsequently changed to “Mamram Developers Pvt. Ltd” and later “Sh.Shyam Sunder Infrastructure Pvt. Ltd”. Upon receiving notice of reassessment under Section 148 of the Act, the successor company reiterated that it would stand by original return filed on 30.05.2003. The assessment was completed under Section 144 of the Act. The assessee appealed on diverse grounds including firstly on the question of lack of jurisdiction of the Assessing Officer (AO) to complete the assessment, inter alia, for the reason that the concerned AO who sought to complete the proceedings was not vested with authority.

Held:

In the present case, there is no dispute that the reassessment notice was issued by the AO on 22.03.2010; upon its receipt, the assessee reiterated its earlier return on 21.04.2010. Since its response led to objections as to the jurisdiction, it lost the capacity to urge the ground by virtue of the provision under Section 124(3)(a). This condition has been obviously overlooked by the ITAT which proceeded to set aside the assessment and completed the reassessment proceedings. The impugned order is consequently set aside; the question of law urged by the Revenue is answered in its favour.

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2.   ITO Vs. Prathish Bansal, I.T.A. No. 1156/Del/2012, Date of Pronouncement: 31.12.2014, ITAT - Delhi

Whether it is justified to remand the matter back to Ld. AO by the tribunal, in case the Assessing Officer has been given sufficient opportunity by the CIT(A) to examine the evidence produced by the assessee? Held: No

Facts:

The assessee filed the return of income on 31.07.2008 declaring an salary income of Rs. 1,03,091/-. Later on, the case was selected for scrutiny and the assessment u/s 144 was made by making the addition of Rs. 40,67,559/- on account of cash deposited in ICICI Bank and Rs. 16,000/- in Canara Bank. Being aggrieved the assessee carried the matter to the ld. CIT(A) and furnished the additional evidence. The CIT (A) has asked the AO to examine the additional evidence. However the AO did not mentioned the issues of revised return. But the CIT(A) has verified all the documents/evidences and determined the income of the assessee by applying ‘Peak theory’.

Held:

It is well settled that the powers of the ld. CIT(A) are coterminous with that of the AO and the ld. CIT(A) can do all those things which the AO ought to have done. In the present case the ld. CIT(A) categorically stated that sufficient opportunity was given to the AO to examine the case but the AO had not given any cognizance to the additional evidences furnished by the assessee in the form of revised return and supporting documents etc. On the other hand, the ld. CIT (A) examined and verified the Bank Statements, Books of Accounts, Purchase and Sale Ledgers, Cash Book, Bank Book etc. relating to the business of the assessee. This fact has been mentioned by the ld. CIT(A) at page no 14 of the impugned order. The ld. CIT(A) after proper verification and examining the books of account came to the conclusion that the business income of the assessee was required to be estimated on the basis of “Peak Credit Theory” and accordingly he estimated the business income at Rs. 1,90,088/- which was the Peak Credit on 11.10.2007, instead of the business income shown by the assessee at Rs. 46,620/- in the revised return of income. In our opinion the ld. CIT(A) has taken a just view which do not require any interference on our part. Accordingly, we do not see any merit in the appeal of the department.

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