Section 149 of the 1961 Act, which provides the period limitation, categorically provides that no notice under Section 148 shall be issued after the period prescribed has lapsed. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Assessing Officer to proceed to reassess.
Smt. Amita Agarwal v. ACIT (ITAT Agra) -Assessee filed her return wherein income arising from sale of shares was shown as ‘Long-term Capital gain’ – Assessing Officer, however, brought said amount to tax under head ‘Income from other sources’ – On appeal before Tribunal, Judicial Member, allowed assessee’s claim in light of overwhelming evidences produced by her to prove genuineness of transaction – Accountant Member, however, in view of order passed in case of Baijnath Agarwal v. Asstt. CIT [2010] 40 SOT 475 (Agra)(TM) took a different view
The learned Judicial Member had confirmed the order of CIT(A) quashing the reassessment proceedings both on the basis of invalidity of notice having been issued on the dead person and the service of notice on legal heir of assessee beyond the period of limitation, whereas the learned Accountant Member set aside the order of ld. CIT(A) holding the reassessment proceedings as valid having been initiated after issuing valid notice and its proper service. The Third Member vide his opinion dated 8-12-2010 concurred with the decision reached by learned Judicial Member on invalidity of notice having been issued on the dead person thereby rendering the reassessment proceedings as void and agreed with the learned Accountant Member on the validity of service of notice holding that the notice could be validly served beyond the time-limit prescribed under section 149 of the Income-tax Act.
It was the duty of the A.O. to bring on record sufficient evidences and material to prove that the documents filed by the assessee were bogus, false or fabricated and the long term capital gain shown by him was actually his income from undisclosed sources.
Where the Assessing Officer has not carried out necessary enquiry which ought to have been carried out for allowing deduction to the assessee under section 40(b), the order passed by the Assessing Officer was erroneous and prejudicial to the interest of the Revenue and CIT has rightly invoked the provisions of section 263.
Order can be revised if and only if the twin conditions, viz., one that the order is erroneous and two – that to that extent it is prejudicial to the interest of the Revenue co-exist.
In the case of Mayawati v. CIT [2009] 222 CTR 117 (Delhi), it is nowhere mentioned that for drawing the presumption u/s 27 of the General Clauses Act, there is necessity of acknowledgment due.
When a part of the surrender can be accepted on proper explanation the rest can also be allowed to be explained. The assessee’s claim that balance was from cash withdrawals from cash book has to be tested on the facts appearing in the case. For that test it would be necessary that cash book be examined. Both members agree to that effect – the Accountant Member stating that if cash is found withdrawn it should be excepted whereas the Judicial Member directs to verify as to how the cash was generated in the cash book. In my opinion the later course appear to be more reasonable as the cash availability is to be examined with reference to entries made therein.
However, in the impugned case there is no material on record to suggest or to hold that any sincere attempt was made by the Revenue to make the service through normal mode. For the reasons discussed above, the decision in the case of Jagannath Prasad & Ors. Vs. CIT (supra) will have square application to the present case and relying on the decision in the case of M/s Ganeshi Lai & Sons (supra), it cannot be held that service of notice by affixture in the present case was a valid service.
No doubt that the possession of three currency notes with the assessee has raised a presumption that the amount stated on those currency notes was paid by the assessee to the said Shri Shankar Lai. However, the same was a rebuttable presumption. The assessee has explained that these payments were made by the assessee subsequent to the date of survey
