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Ratnashri Infrastructure Pvt. Ltd., ... vs Acit, Central Circle- 4 , New Delhi on 31 October, 2023
cites
Section 147 in The Income Tax Act, 1961 [Entire Act]
Section 68 in The Income Tax Act, 1961 [Entire Act]
Section 69C in The Income Tax Act, 1961 [Entire Act]
Micro Marbles Private Limited vs Income Tax Officer Ward-1 on 4 January, 2023
2023 WP
3177/2022 and hon 'ble Bombay high court in case of PCIT vs
Shodiman investment pvt ltd 422 ITR 337)
3.3 Apropos expansion of reopening made in instant case as
evident from para 4 of impugned asst order which is founded on
unconfronted appraisal report (which in internal/confidential
report only) and so same can not be utlilised against assessee sans
same being confronted to assesssee (refer hon'ble rajastha high
court in case of Micro Marbles 'Pvt Ltd vs ITO 457 ITR 569 and
hon 'ble Bombay high Court in Anurag Gupta case 454 ITR 326
and further same has not been lawfully inducted vide
separate/mandatory corresponding notice u/s 148 (refer delhi high
court in Ranbaxy laboratories case 336 ITR 136 and Mumbai G
bench of ITAT in case of Juliet industries ltd vs ITO (ITA
5452/Mum/2016 order dated 04.04.2018 and delhi C bench IT AT
in case of INS Finance investment pvt ltd vs. ITO (ITA
9266/DEL/2019 order dated 26.10.2020) and further same is in
nature of roving and fishing inquiries only as there is no income
escaping asst element/ingredient in said appraisal report
information; and further same is stale information already
available prior to reopening action and do not meet criteria of
tangible material, so expansion of reopening is totally illegal and
unlawful;"
Section 132 in The Income Tax Act, 1961 [Entire Act]
Raza Textiles Ltd. vs Income Tax Officer, Rampur on 22 September, 1972
3.1 It is settled law that validity of reopening u/s 148 is a
jurisdictional issue and goes to the root of the matter and requires
to decided at the outset itself; reference is made to three judge
bench decision of hon'ble apex court in case of Narayana cheety
vs ITO 35 ITR 388 THAT reopening based on invalid notice u/s
148 is void and illegal and issue of valid notice u/s 148 is not a
mere procedural requirement; SC 4 Jugde bench decision in case
of Raza Textiles vs ITO 1973 87 ITR 539 SC; SC 4 Judge bench
decision in Karan Singh vs Chaman singh Paswan AIR 1954 SC
340 ; Hon'ble Madras high court in case of Charu K Bagadia vs
ACIT (27.06.2022) 448 ITR 563/327 CTR 419: Writ Appeal No.
2493 of 2021 ("At the outset, be it noted, it is settled law that "a
jurisdiction can neither be waived nor created even by consent and
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1607/Del/2019
even by submitting to jurisdiction, an Assessee cannot confer upon
any jurisdictional authority, something which he lacked
inherently". The said ratio squarely applies to the case on hand."
Section 153A in The Income Tax Act, 1961 [Entire Act]
The State Of Gujarat vs Rajesh Kumar Chimanlal Barot & Ors on 5 August, 1996
& Pertinently, it is to be pointed out at this stage that "if an order
is passed by a judicial or quasi-judicial authority having no
jurisdiction, it is an obligation of Appellate Court to rectify the
error and set aside the order passed by the authority or forum
having no jurisdiction" [Refer: State of Gujarat v. Rajesh Kumar
Chimanlal Barot and another, AIR 1996 SC 2664]
3.2 On validity of present reopening action u/s 147/148 based on
impugned reasons recorded: It is glaring that same is totally
without any application of mind and is merely based on borrowed
satisfaction and do not fulfill requisite jurisdictional threshold of
valid 'reasons to believe" u/s 148(2) : as is evident from following
shining and patent deficiencies in present reasons recorded :
Anilaben Rohitbhai Modi vs Income Tax Officer, Ward 5(3)(1), ... on 23 June, 2023
firstly there is total lack of live nexus and rational connection
(refer SC lakmnai mewal dass 103 ITR 437) in reasons recorded
as there is no reference of jmd sounds in list of companies branded
as jama kharchi companies ; secondly there is no exact date and
relevant banking details mentioned in reasons recorded qua
subject transaction and thirdly merely because said amount is not
credited to P&L account by assessee same is treated as income
escaping assessment which is totally incorrect as same is evident
from admitted /undisputed fact that same is in nature share
capital/share premium in hands of assessee herein ; fourthly
reasons are not based on any valid /actionable "tangible"
material sans which reopening u/s 147/148 can not be made ;
fifthly reasons are merely in nature of conjecture and surmises and
suspect which can not satisfy test of reasons to believe u/s 147/148
of 1961 Act; sixthly they are merely based on some unconfronted
investigation wing information , which has not been independently
and adequately examined and analysed at end of Ld AO at stage of
recording of reasons u/s 148(2) thus a case of borrowed
satisfaction ; so instant reasons recorded fails to pass muster of
law and thus impugned reopening action can not be countenanced
; (reliance is placed on:On issue of invalid reopening if made on
basis of borrowed satisfaction as done in instant case; refer hon
'ble delhi high court latest ruling in case of Blackstone capital
reported at 452 ITR 111. Same is proposition laid down by delhi
high Court in case of Munjal Showa Ltd vs DCIT382 ITR 555 and
hon'ble Gujarat high court rulings in cases of: Anilaben Rohitbhai
Modi vs ITO in SCA 3526/2022 order dated 23.06.2023 (para 21
& 22) 456 ITR 607and on issue of lack of live nexus etc delhi high
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1607/Del/2019
court latest ruling in case of CIT vs Spirit Global Construction Pvt
Ltd 2023 SCC OnLine Del 4188ITA 191/2018 Decided on July 18,
2023 is relied) and recent hon'ble Bombay high court in case of
B.C. bhandari auto lines pvt ltd vs A CIT 292 Taxman 195/ 331
CTR 240 and hon'ble Bombay high court recent decision in case of
Gandhibag Sahkari Babnk ltd vs DCIT 25 SEP.