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Invoking 148 after 143(3)/254

(Querist) 27 February 2014 This query is : Resolved 
for A Y 2007-08, assessment u/s 143(3) was set aside by ITAT on 07.08.2012 which attained finality but new ITO initiating 148 proceedings simply on change of opinion on 29.08.2012 (after over 4 years) and then reassessing on 30.01.2014, creating huge demand for disallowed Depreciation and direct expenses, disagreeing with his predecessor, on the basis of internal audit observations on assessed rate of depreciation. Should Assessee (a) approach ITAT for circumvention of its Order (b) file regular First Appeal before CIT(A) once again (c) approach administrative CIT, or (d) ignore notices of (i) arbitrary Demand u/s 156 and (ii) penalty proceedings u/s 274/271 ?
Rajesh Thakker (Expert) 28 February 2014
Dear Mr. Singal,
1. When you received notice u/s 147, have you asked recording of reasons? If yes, then Whether AO had given you reasons? If yes, then it is similar to ITAT order? If no, then it is not parallel with ITAT order and it is new issue.
2. If you had objected the notice after or during the assessment proceeding about time barred notice? If yes, it is good point for appeal. If no, it is difficult for you to argue before the 1st appellate authority as it is fresh ground. However, without keeping this, you should your this point before the 1st appellate authority and request him to call the remand report from the AO on this point. If it may deny but it will help to you before ITAT.
3. Whatever you had stated regarding change of mind of the AO, you must put it before him during the reassessment proceeding. Is it done? If yes, it is good, otherwise it will be consider fresh ground before the 1st appellate authority, without disappointing ask before the 1st appellate authority to call remand report on this point from the AO.
4. Assessment is made, now only the way to approach CIT Appeal.
Good luck, case is good for litigation.
Surrender K Singal (Querist) 28 February 2014
Thanks, dear expert RT; Yes, Assessee had objected to 147/148, sought reasons, validity of invoking 148 simply on change of mind / opinion. But, AO simply added all Audit observations without even considering the details, sought / submitted (on merits) in justification of allowability; So, Assessee has to follow the same procedural second innings of Appeals, as done in first innings; Is it not time barred after 4 years of 31.03.2008 to invoke 148 on 29.08.2012, after regular scrutiny u/s 143(3)as on 15.12.2009 ?
Surrender K Singal (Querist) 28 February 2014
What is remand report ?
Rajesh Thakker (Expert) 28 February 2014
Dear Mr Singal,
Yes, you have to go to the appeal. Your case is very sound and need not to very. However, time consuming procedure you must have to follow.
When any new ground produce before the 1st appellate authority and he think that the assessee has valid reason to produce fresh ground before him, then he call the opinion of the AO, its say remand report.
Rajendra K Goyal (Expert) 28 February 2014
Well advised by the expert, agree to it.
T. Kalaiselvan, Advocate (Expert) 01 March 2014
I too agree with the expert Mr. Rajesh Takkar's views on the subject.
Surrender K Singal (Querist) 01 March 2014
Thanks dear RT for encouraging;


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