Sri.E.Shamsudeen, Kollam V. DCIT, Kollam

CO 26/COCH/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2083 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 14-01-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 11-09-2015
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Assessee Lawyers: N VASUDEV RAJKUMAR
• Keywords: Income from undisclosed sources; Block assessment
• Section: 143(3); 133A; 153A; 147; 145; 148; 132; 12; 144; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH C OCHIN BEFORE S/SHRI B.P. JAIN, AM AND GEORGE GEOR GE K., JM I.T.A. NOS. 362 & 417 T0 420/COCH/2015 ASSESSMENT YEARS : 2001-02 & 2003-04-2006-07 THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOLLAM. VS. SHRI E. SHAMSUDEEN, KONCHERIL VEGETABLES, EDAPALLIKOTTA, KOLLAM. [PAN: AACPE 9388F] (REVENUE -APPELLANT) (ASSESSEE-RESPONDENT) C.O. NOS.24-28/COCH/2015 (ARSG. OUT OF I.T.A. NOS. 362 & 417 T0 420/COCH/201 5) ASSESSMENT YEARS : 2001-02 & 2003-04-2006-07 SHRI E. SHAMSUDEEN, KONCHERIL VEGETABLES, EDAPALLIKOTTA, KOLLAM. [PAN: AACPE 9388F] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOLLAM. (ASSESSEE -APPELLANT) (REVENUE-RESPONDENT) REVENUE BY SHRI SHANTAM BOSE, CIT/DR ASSESSEE BY SHRI N. VASUDEV RAJKUMAR, CA DATE OF HEARING 14/01/2016 DATE OF PRONOUNCEMENT 01/02/2016 O R D E R PER BENCH: THESE FIVE APPEALS OF THE REVENUE ARISE FROM T HE CONSOLIDATED ORDER OF THE LD. CIT(A)-IV, KOCHI DATED 20-03-2015 FOR THE ASSES SMENT YEARS 2001-02 AND 2003-04 TO 2006-07. THE ASSESSEE HAS ALSO FILED CRO SS OBJECTIONS ARISING OUT OF THE REVENUES APPEALS. I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 2 2. SINCE THE ISSUES IN ALL THE APPEALS ARE IDEN TICAL, THEREFORE, ALL THE APPEALS ARE BEING TAKEN BY THIS CONSOLIDATED ORDER. 3. FIRST OF ALL WE SHALL TAKE UP THE REVENUES AP PEAL IN I.T.A. NO. 362/COCH/2015 FOR THE ASSESSMENT YEAR 2001-02 AND O UR ORDER HEREINABOVE SHALL BE IDENTICALLY APPLICABLE FOR ALL THE OTHER YEARS, I.E., 2003-04 TO 2006-07. I.T.A. NO. 362/COCH/2015 : AY 2001-02 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASS ESSEE IS A VEGETABLE DEALER AND IS ENGAGED IN THE BUSINESS OF WHOLESALE AND RETAIL SALE OF VEGETABLES. THE ASSESSEE HAD FILED THE RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2001-02 DISCLOSING A TOTAL INCOME OF RS.1,42,651/- AND AGRI CULTURAL INCOME OF RS.10,000/-. 5. A SEARCH U/S. 132 AND SURVEYS U/S. 133A OF THE ACT WERE CONDUCTED AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE. ACCORDING TO THE DEPARTMENT, INCRIMINATING DOCUMENTS WERE FOUND IN THE POSSESSIO N OF THE ASSESSEE SHOWING UNACCOUNTED INCOME HELD BY HIM. PURSUANT THEREOF, A NOTICE U/S. 153A WAS ISSUED TO THE ASSESSEE ON 14/12/2007 TO FILE THE RE TURN OF INCOME. IN RESPONSE, THE ASSESSEE FILED THE RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2001-02 ON 16- 03-2007 DECLARING A TOTAL INCOME OF RS.1,77,650/- A ND AGRICULTURAL INCOME OF RS.10,000/-. THEREAFTER, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED TO THE I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 3 ASSESSEE ON 30-05-2008. THE ASSESSING OFFICER VIDE ORDER DATED 30-12-2008 COMPLETED THE ASSESSMENT AND DETERMINED THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 AT RS.23,15,770/-. 6. AGGRIEVED BY THE ASSESSMENT ORDER DATED 30-12- 2008, THE ASSESSEE CHALLENGED THE SAME BEFORE THE LD. CIT(A). APART F ROM THE GROUNDS RAISED IN FORM NO. 35 FILED BEFORE LD. CIT(A), THE ASSESSEE H AD RAISED AN ADDITIONAL GROUND DURING THE COURSE OF APPELLATE PROCEEDINGS STATING THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2001-02 U/S. 153A R.W.S. 14 3(3) OF THE ACT IS BAD IN LAW AS NO VALID NOTICE U/S. 143(2) OF THE ACT WAS SERVE D FOR INITIATING THE ASSESSMENT. THE BASIC CONTENTION OF THE ASSESSEE WAS THAT THE I SSUANCE OF NOTICE U/S. 143(2) OF THE ACT WAS TIME BARRED AND THE DELAY OCCASIONED THEREOF CANNOT BE SAID TO BE PROCEDURAL IN NATURE AND THEREFORE, THE ASSESSME NT MADE WAS WITHOUT JURISDICTION. THE AFORESAID ADDITIONAL GROUND RAISE D BY THE ASSESSEE IS EXTRACTED HEREINBELOW: THE ASSESSMENT FOR THE YEAR 2001-02 MADE U/S. 153A R.W.S. 143(3) IS BAD- IN-LAW AND INVALID, SINCE NO VALID NOTICE U/S. 143( 2) HAS BEEN SERVED FOR INITIATING THE ASSESSMENT. THE ASSESSMENT FRAMED IS WITHOUT AUTHORITY OF LAW AND SHOULD BE TREATED AS ILLEGAL AND VOID ABINITIO . 7. THE LD. CIT(A), INTER ALIA, RELYING UPON THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF ACIT & ANOTHER VS. HOTEL BLUE MOON, 321 ITR 362 AND THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF R. ROMI I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 4 VS. CIT, 363 ITR 311, ALLOWED THE GROUND RAISED BY THE ASSESSEE AND HELD THAT THE PROVISIONS CONTAINED IN SECTION 143(2) WER E APPLICABLE TO THE ASSESSMENT CARRIED OUT UNDER SECTION 153A. IT WAS FURTHER HELD THAT IN THE PRESENT CASE, NO NOTICE U/S. 143(2) WAS ISSUED WITH IN THE PRESCRIBED PERIOD AND THEREFORE, THE ASSESSMENT WAS NOT VALID. IT WAS FURTHER HELD THAT SECTION 292BB OF THE ACT CANNOT COME TO THE RESCUE OF THE REVENUE IN A SITUATION WHERE THE ISSUANCE OF NOTICE U/S. 143(2) WAS NOT WITHIN THE PRESCRIBED PERIOD. THE APPEAL OF THE ASSESSEE WAS A LLOWED VIDE THE IMPUGNED ORDER DATED 20-03-2015 ON THIS GROUND ALON E AND THE ASSESSMENT ORDER WAS TREATED AS INVALID. 8. AGGRIEVED BY THE AFORESAID ORDER PASSED BY TH E LD. CIT(A) DATED 20- 03-2015, THE REVENUE HAS PREFERRED THIS APPEAL BEFO RE US RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPE ALS)-IV, KOCHI IS OPPOSED TO LAW, WEIGHT OF EVIDENCE AND FACTS OF THE CASE. 2. LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSMENT S COMPLETED U/S. 153A R.W.S. 143(3) FOR THE ABOVE ASSESSMENT YEARS A RE INVALID ON THE REASON THAT NOTICE U/S. 143(2) WAS NOT SERVED IN TI ME. 3. SECTION 292BB OF THE ACT CLEARLY STATES THAT W HERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR COOPERATED IN ANY IN QUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WIT H THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER THIS ACT THAT TH E NOTICE WAS I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 5 (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAS RAISES SUCH OBJECTION BEFORE THE COMPL ETION OF SUCH ASSESSMENT OR REASSESSMENT. 4. CLAUSE 42.7 OF THE RELEVANT CBDT CIRCULAR (CIRC ULAR NO. 1 OF 2009 DATED 23/07/09) CLEARLY STATES THAT THE PROVISION O F NEW SECTION 292BB SHALL APPLY IN ALL PROCEEDINGS WHICH ARE PENDING ON 1 ST APRIL 2008 . IN THE INSTANT CASE THE AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF THE ASSESSEE ON VARIOUS DATES BETWEEN 02/09/2008 TO 23/ 12/2008 AND FURNISHED ALL THE DETAILS AS REQUIRED FOR THE COMPL ETION OF ASSESSMENT. THEREAFTER, THE ASSESSING OFFICER, AFTER DULY CONSI DERING ALL THESE DETAILS, PASSED THE ASSESSMENT ORDER ON 30/12/2008. THAT IS TO SAY, THERE CANNOT BE ANY DOUBT REGARDING THE FACT THAT AS ON 1 ST APRIL, 2008, THE PROCEEDING WAS PENDING. 5. FROM A COMBINED READING OF CLAUSE 42.4 AND CLAU SE 42.7 OF THE SAID CIRCULAR (CBDT CIRCULAR NO. 1 OF 2009 DATED 23/07/0 9), IT EMERGES THAT AFTER 1 ST APRIL, 2008 (THAT IS THE DATE ON WHICH SECTION 292 BB CAME INTO FORCE), ASSESSEE IS PRECLUDED FROM TAKING AN OBJECT ION ON THE GROUND THAT NOTICE WAS NOT SERVED IN TIME (AFTER FULLY CO- OPERATING IN THE PROCEEDING WITHOUT RAISING ANY OBJECTION ON THE SAI D GROUND). IN THE INSTANT CASE ASSESSEE HAS RAISED THIS ISSUE (AS AN ADDITIONAL GROUND, BEFORE CIT(A)) ONLY ON 10-08-2010. THEREFORE, THE A DDITIONAL GROUND OUGHT TO HAVE BEEN REJECTED OUT RIGHTLY. 6. IN PAGE 18, CLAUSE (VI) OF THE APPELLATE ORDER, LD. CIT(A) HOLDS THAT PROVISIONS OF SECTION 292BB WOULD BE APPLICABLE ONL Y IN CASES WHERE NOTICE U/S. 143(2) CAN STILL BE ISSUED ON 1 ST APRIL, 2008, AND THEREFORE, SECTION 292BB IS NOT APPLICABLE IN THE INSTANT CASE . LD. CIT(A) IS, CLEARLY, CONFUSED BETWEEN DATE OF APPLICABILITY OF PROVISION S OF SECTION 292BB AND DATE OF APPLICABILITY OF AMENDED PROVISIONS OF SECTION 143(2). CLAUSE 42.8 OF THE CBDT CIRCULAR STATES THAT AMENDED PROVI SIONS OF SECTION 143(2) SHALL APPLY TO SUCH RETURNS WHERE THE NOTICE UNDER THAT SUBSECTION CAN STILL BE ISSUED ON 1 ST APRIL, 2008.THAT DOESNT MEAN THAT SECTION 292BB IS ALSO APPLICABLE ONLY IN CASE WHERE NOTICE U/S. 143(2) CAN STILL BE ISSUED ON 1 ST APRIL, 2008. AS ALREADY CLARIFIED IN CLAUSE 42.7 O F THE CBDT CIRCULAR, PROVISION OF SECTION 292BB SHALL APPLY IN ALL PROCEEDINGS WHICH ARE PENDING ON 1 ST APRIL, 2008. IN THE INSTANT CASE, THE PROCEEDINGS WERE PENDING FOR REASONS STATED IN PARA 4 ABOVE. I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 6 THEREFORE, THE ASSESSMENT IS VALID, IN THE LIGHT OF PROVISIONS OF SECTION 292BB. 7. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING IT IS REQUESTED THAT THE ORDER OF THE CIT(A ) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 9. THE REVENUE HAS CHALLENGED THE AFORESAID ORDER ON PRIMARILY TWO GROUNDS I.E., THAT THE ASSESSMENT COMPLETED U/S. 15 3A CANNOT BE SAID TO BE INVALID ON THE REASON THAT NOTICE U/S. 143(2) WAS N OT SERVED IN TIME AND SECONDLY, THE ASSESSEE HAVING PARTICIPATED IN THE A SSESSMENT PROCEEDINGS AND HAVING NOT RAISED ANY OBJECTION PERTAINING TO T HE ISSUANCE OF NOTICE U/S. 143(2), THE ASSESSMENT CANNOT BE DECLARED INVALID A S PER SECTION 292BB OF THE ACT 10. WE SHALL FIRST TAKE UP GROUND NO. 2 RAISED BY THE REVENUE. THE PRINCIPLE QUESTION TO BE DECIDED IN THIS APPEAL IS WHETHER THE FAILURE ON THE PART OF THE ASSESSING OFFICER TO ISSUE NOTICE AS PE R PROVISIONS CONTAINED IN SECTION 143(2) OF THE ACT WILL RENDER THE ASSESSMEN T U/S. 153A R.W.S. 143(3) INVALID. 11. THE LD. AR SUBMITTED THAT THE ASSESSMENT MADE U/S. 153A R.W.S. 143(3) HAS BEEN RIGHTLY TREATED AS VOID ABINITIO BY THE LD. CIT(A) AS NO VALID NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE FOR INITIATING THE ASSESSMENT. IT IS THE CASE OF THE ASSESSEE THAT THE PROVISIONS OF EXPLANATION I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 7 (1) TO SECTION 153A ARE UNAMBIGUOUS IN THIS REGARD. THE LD. AR ARGUED THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 16- 03-2007 AND THE REVENUE OUGHT TO HAVE SERVED THE NOTICE U/S. 143(2) BEFORE 30-09-2007. THE NOTICE WAS INSTEAD SERVED ONLY ON 07-06-2008. THE LD. AR FURTHER ARGUED THAT THE ASSESSING OFFICER GETS JURISDICTION ONLY BY ISSUANCE OF NOTICE U/S. 143(2) AND THE SAME IS ABSOLUTELY REQUIRED IN THE CASES OF SEARCH ASSESSMENTS U/S. 153A OF THE ACT. IN SUM AND SUBSTA NCE, THE ARGUMENT OF THE LD. AR WAS THAT IN SEARCH ASSESSMENTS, ALL OTHE R PROVISIONS OF THE ACT, SAVE AS OTHERWISE PROVIDED IN SECTION 153A, 153B AN D 153C, HAVE TO BE NECESSARILY APPLIED AND THEREFORE, TIME LIMIT OF SE RVICE OF NOTICE U/S. 143(2) SHALL ALSO APPLY. 12. TO SUPPORT HIS SUBMISSIONS, THE LD. AR HAS REL IED UPON VARIOUS JUDGMENTS LISTED IN THE WRITTEN SUBMISSIONS SUBMITT ED BY HIM. HE HAS PRIMARILY RELIED UPON THE FOLLOWING JUDGMENTS:- 1) ACIT AND ANR VS. HOTEL BLUE MOON 321 ITR 362 (SC) 2) CIT VS. PAWAN GUPTA 318 ITR 322 (DELHI) (SLP ON ABOVE BY REVENUE DISMISSED BY SC) . 3) R. ROMI VS. CIT 363 ITR 311 (KER-HC) 4) CIT VS. GITSONS ENGINEERING CO. 370 ITR 87 (MAD-HC.) 5) ACIT VS. GREATER NOIDA INDUSTRIAL DEVELOPM ENT AUTHORITY 379 ITR 14 (ALL-HC). 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE AND THE JUDGMENTS RELIED UPON BY THE PARTIES. SECTI ON 153A OF THE ACT I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 8 PROVIDES FOR THE PROCEDURE FOR ASSESSMENT IN THE CA SE OF SEARCH. FOR REFERENCE, SECTION 153A OF THE ACT IS EXTRACTED HER EINBELOW:- 153A (1) NOTWITHSTANDING ANYTHING CONTAINED IN SEC TION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 13 2 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UND ER SECTION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETU RN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM A ND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PART ICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION. 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITI ON IS MADE; PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SUCH SIX ASSESSMENT YEARS; PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SI X ASSESSMENT YEARS REFERRED TO IN THIS SUB-SECTION PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION U NDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE.; PROVIDED ALSO THAT THE CENTRAL GOVERNMENT MAY BY RULES MADE BY I T AND PUBLISHED IN THE OFFICIAL GAZETTE (EXCEPT IN CASES WHERE ANY ASSESSMENT OR REASSESSMENT HAS ABATED UNDER THE SECOND PROVISO), SPECIFY THE CLASS OR CLASSES OF CASES IN WHICH THE ASSESSING OFFICER SHA LL NOT BE REQUIRED TO ISSUE NOTICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR R EQUISITION IS MADE. (2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASS ESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN AN NULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING A NYTHING CONTAINED IN I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 9 SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR R EASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECO ND PROVISO TO SUB- SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM T HE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE PRINCIPAL COMMISSION ER OR COMMISSIONER; PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF S UCH ORDER OF ANNULMENT IS SET ASIDE. EXPLANATION.- FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT,- (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SE CTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHA LL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESP ECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. THE SAID SECTION NOWHERE EXPRESSLY PROVIDES THE REQ UIREMENT OF ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. THE ISSUE RAISED IN THE PRESENT APPEAL IS CLEARLY AGAINST THE ASSESSEE IN THE JUDGMENT RENDER ED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. ITO 337 ITR 399, WHEREIN THE HONBLE COURT HELD THAT NO SPECIFIC NOTICE WAS REQU IRED U/S. 143(2) OF THE ACT AS UNDER: 13. THE WORDS SO FAR AS MAY BE IN CLAUSE (A) OF SUB-SECTION (1) OF SECTION 153A COULD NOT BE INTERPRETED THAT THE ISSU E OF NOTICE UNDER SECTION 143(2) WAS MANDATORY IN CASE OF ASSESSMENT U/S. 153A. THE USE OF THE WORDS, SO FAR AS MAY BE CANNOT BE STRE TCHED TO THE EXTENT OF MANDATORY ISSUE OF NOTICE U/S. 143(2). AS IS NOTED, A SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED UNDER CLA USE (A) OF SUB- SECTION (1) OF SECTION 153A CALLING UPON THE PERSON S SEARCHED OR REQUISITIONED TO FILE RETURN. THAT BEING SO, NO FUR THER NOTICE U/S. 143(2) COULD BE CONTEMPLATED FOR ASSESSMENT U/S. 15 3A. 14. NO SPECIFIC NOTICE WAS REQUIRED U/S. 143(2) OF THE ACT WHEN THE NOTICE IN THE PRESENT CASE AS REQUIRED U/S. 153(A) (1)(A) OF THE ACT WAS ALREADY GIVEN. IN ADDITION, THE TWO QUESTIONNAI RES ISSUED TO THE I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 10 ASSESSEE WERE SUFFICIENT SO AS TO GIVE NOTICE TO TH E ASSESSEE, ASKING HIM TO ATTEND THE OFFICE OF THE ASSESSING OFFICER I N PERSON OR THROUGH A REPRESENTATIVE DULY AUTHORIZED IN WRITING OR PROD UCE OR CAUSE TO BE PRODUCED AT THE GIVEN TIME BY DOCUMENTS, ACCOUNTS, AND ANY OTHER EVIDENCE ON WHICH HE MAY RELY IN SUPPORT OF THE RET URN FILED BY HIM. 14. ADMITTEDLY IN THE PRESENT CASE, A VALID NOTICE U/S . 153A WAS ISSUED TO THE ASSESSEE. THE RATIO LAID DOWN IN THE CASE OF AC IT VS. HOTEL BLUE MOON 321 ITR 362 RELIED UPON BY THE ASSESSEE IS NOT APPL ICABLE TO THE FACTS OF THE PRESENT CASE AS THE ISSUE RAISED THEREIN WAS PERTAI NING TO THE ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT IN THE CASE OF BLOCK ASSESSMENT U/S. 158BC OF THE ACT AND NOT U/S. 153A OF THE ACT. U/S. 158BC, THERE IS A SPECIFIC REQUIREMENT OF ISSUANCE OF NOTICE U/S. 143(2) OF TH E ACT WHICH IS NOT THE CASE U/S. 153A OF THE ACT. THE HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA (SUPRA) WHILE DISTINGUISHING THE RATI O LAID DOWN IN THE CASE OF HOTEL BLUE MOON (SUPRA) HAS HELD AS UNDER:- 9. THERE IS NO SPECIFIC PROVISION IN THE ACT REQUI RING THE ASSESSMENT MADE U/S. 153A TO BE AFTER ISSUE OF NOTICE U/S. 143 (2) OF THE ACT. LEARNED COUNSEL FOR THE ASSESSEE PLACES HEAVY RELIA NCE ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN HOTEL BLUE MOON VS. DCIT (SUPRA) WHEREIN IT WAS HELD THAT THE WHERE AN ASSES SMENT HAS TO BE COMPLETED U/S. 143(3) READ WITH SECTION 158BC, NOTI CE U/S. 143(2) MUST BE ISSUED AND OMISSION TO DO SO CANNOT BE A PR OCEDURAL IRREGULARITY AD THE SAME IS NOT CURABLE. IT IS TO B E NOTED THAT THE ABOVE SAID JUDGMENT WAS IN THE CONTEXT OF SECTION 1 58BC. CLAUSE (B) OF SECTION 158BC EXPRESSLY PROVIDES THAT THE ASSES SING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND THE PROVI SIONS OF SECTION 142, SUB SECTIONS (2) AND (3) OF SECTION 143, SECTI ON 144 AND SECTION 145 SHALL, SO FAR AS MAY BE, APPLY. THIS IS NOT THE POSITION U/S. 153A. I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 11 THE LAW LAID DOWN IN HOTEL BLUE MOON, IS THUS NOT A PPLICABLE TO THE FACTS OF THE PRESENT CASE. 10. THE DECISION OF LUNAR DIAMOND LTD. (SUPRA), VAR DHMAN ESTATES (SUPRA) AND BHAN TEXTILES (SUPRA) RELIED UPON BY LE ARNED COUNSEL FOR THE ASSESSEE RELATED TO THE REQUIREMENT OF SERVICE OF NOTICE UPON THE ASSESSEE WITHIN A PRESCRIBED TIME AND THUS NOT APPL ICABLE TO THE PRESENT CASE. THE CASE OF PAWAN GUPTA (SUPRA) RELAT ED TO MANDATORY ISSUE OF NOTICE U/S. 143(2) OF THE ACT IN THE CASE OF REGULAR ASSESSMENT AS ALSO ON BLOCK ASSESSMENT. THIS BEING NOT A CASE OF ASSESSMENT BASED ON SEARCH U/S. 153A, THE ISSUE IS NOT APPLICABLE TO THE PRESENT CASE. IN THE CASE OF RAJ KUMAR CHAWLA ( SUPRA) RELIED UPON BY LEARNED COUNSEL FOR THE ASSESSEE WAS THAT O F THE TRIBUNAL, WHEREIN A VIEW WAS TAKEN THAT IF A RETURN FILED U/S . 148 OF THE ACT IS SOUGHT TO BE SCRUTINIZED, THE COMPLIANCE OF PROVISI ON CONTAINED IN PROVISO U/S. 143(2) OF THE ACT IS MANDATORY. THE IS SUE OF REQUIREMENT OF NOTICE U/S. 143(2) FOR AN ASSESSMENT U/S. 147 CA ME UP FOR CONSIDERATION BEFORE THIS COURT RECENTLY IN CIT VS. MADHYA BHARAT ENERGY CORPN., ITA NO.950/08 DECIDED ON 11-07-2011. IN THAT CASE ALSO, THIS COURT HAS HELD THAT IN THE ABSENCE OF AN Y SPECIFIC PROVISION U/S. 147 OF THE ACT, THE ISSUANCE OF NOTICE U/S. 14 3(2) CANNOT BE HELD TO BE A MANDATORY REQUIREMENT. 15. THE JUDGMENTS RELIED UPON BY THE LD. AR IN TH E CASE OF CIT VS. PAWAN GUPTA (SUPRA) AND R. ROMI VS. CIT (SUPRA) ARE NOT A PPLICABLE TO THE PRESENT CASE AS THE SAME PERTAIN TO THE REQUIREMENT OF THE ISSUANCE OF NOTICE IN BLOCK ASSESSMENT PROCEEDINGS MADE U/S. 158BC OF THE ACT AND NOT U/S. 153A OF THE ACT. 16. SIMILARLY, THE RATIOS CONTAINED IN THE CASE O F CIT VS. GITSONS ENGINEERING CO. (MAD-HC) (SUPRA) AND ACIT VS. GREATE R NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY (ALL-HC) (SUPRA) ARE NOT APPL ICABLE AND ARE DISTINGUISHABLE WITH THE PRESENT CASE. THE ISSUE I NVOLVED THEREIN WAS THE REQUIREMENT OF ISSUANCE OF NOTICE U/S. 143(2) OF TH E ACT IN THE PROCEEDINGS I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 12 INITIATED U/S. 147, 148 OF THE ACT. THE REQUIREMENT OF NOTICE U/S. 143(2) CANNOT BE SAID TO BE ANALOGOUSLY APPLICABLE TO SECT ION 153A PROCEEDINGS ONLY BECAUSE THE ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT IS MANDATORY IN THE PROCEEDINGS U/S. 148 OR 158BC OF THE ACT. 17. AN IDENTICAL ISSUE CAME UP BEFORE ITAT, MUMBA I BENCH TM, MUMBAI IN THE CASE OF SMT. SUMANLATA BANSAL VS. ACIT IN ITA NOS. 525- 530/MUM/2008 DATED 20-05-2015 WHEREIN DUE TO DIFFER ENCE OF OPINION BETWEEN THE MEMBERS, THE FOLLOWING QUESTIONS WERE R EFERRED TO THE HONBLE PRESIDENT OF ITAT FOR DECISION:- (A) WHETHER NON-ISSUANCE OF THE NOTICE AS PROVIDED IN SUB-SECTION (2) TO SECTION 143 OF THE I.T. ACT IN THE CASE OF A SSESSMENT FRAMED UNDER SECTION 153A, IN CONSEQUENCE OF SEARCH UNDER SECTION 132, IS MERELY AN IRREGULARITY AND THE SAME IS CURABLE? (B) WHETHER ON THE FACTS OF THE CASE, FAILURE ON T HE PART OF THE ASSESSING OFFICER TO ISSUE NOTICE TO THE ASSESSEE A S PER PROVISIONS OF SUB-SECTION (2) TO SECTION 143 SHALL HAVE THE EFFEC T OF RENDERING THE ENTIRE ASSESSMENT FRAMED UNDER SECTION 153A OF THE ACT AS NULL AND VOID? 18. THE BENCH REFERRING TO THE DECISION RELIED UP ON BY THE PARTIES THEREIN HELD AS UNDER: THE LEARNED COUNSEL FOR THE ASSESSEE URGES THAT TH E DECISION IGNORES THE RATIO LAID DOWN IN HOTEL BLUE MOON (SUPRA) AS A LSO OF THE JURISDICTIONAL HIGH COURT IN GENO PHARMACEUTICALS L TD. (SUPRA). ADVERTING TO THE FIRST SUBMISSION, THE CASE OF HOTE L BLUE MOON WAS URGED BEFORE THE COURT IN ASHOK CHADDHA AND HAS BEE N DISTINGUISHED ON ITS APPLICABILITY TO SECTION 153A. ADVERTING TO THE DECISION OF GENO I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 13 PHARMACEUTICALS LTD. (SUPRA), ALL I NEED TO SAY THA T IT DOES NOT INTERPRET THE PROVISIONS OF SECTION 153A OF THE ACT. IT IS UR GED BEFORE ME THAT SERIES OF DECISIONS WERE RENDERED WITH RESPECT TO P ROCEEDINGS U/S. 148, WHICH MANDATES THE ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. I CANNOT ACCEPT THIS CONTENTION AS FIRS TLY, THE LAW IS SETTLED IN ASHOK CHADDHA (SUPRA). IN THESE CIRCUMSTANCES, T HE FIRST QUESTION RAISED FOR CONSIDERATION IS ANSWERED THAT NON-ISSUA NCE OF NOTICE UNDER SUB-SECTION (2) OF SECTION OF THE ACT IS NOT MANDAT ORY. AS A CONSEQUENCE, THE SECOND QUESTION IS ALSO ANSWERED A GAINST THE ASSESSE. ASSESSMENT PROCEEDINGS U/S. 153A CANNOT BE HELD AS NULL AND VOID, FOR NON-ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT, AS THIS PROVISION IS NOT ATTRACTED TO PROCEEDINGS U/S. 153A OF THE AC T. 19. THE AFORESAID QUESTION WAS FURTHER EXAMINED IN THE CASE OF SHRI JEEVAN KUMAR AGARWAL VS. ACIT IN I.T.A. NOS. 346 TO 348/LKW/2013 WHEREIN THE ITAT, LUCKNOW BENCH HELD AS UNDER: 5. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSE E THAT PARA 8 TO 18 OF THE SYNOPSIS, SUBMITTED BY LEARNED A.R. OF TH E ASSESSEE, ARE RELEVANT FOR THIS ISSUE AND SAME SHOULD BE CONSIDER ED. AT THIS JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT IN T HESE PARA OF SYNOPSIS, RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF CIT VS . RAJEEV SHARMA (2011) 336 ITR 678 AND IT IS ALSO NOTED THAT THE JU DGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. C IT (2011) 337 ITR 399 IS AGAINST THE ASSESSEE BUT BY THIS VERY BE NCH OF THE TRIBUNAL IN A CASE, ARGUED BY THE SAME A.R., IT WAS HELD THAT THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE O F ASHOK CHADDHA (SUPRA) IS TO BE FOLLOWED BECAUSE IT IS IN THE CONT EXT OF SECTION 153A WHEREAS THE JUDGMENT OF HONBLE ALLAHABAD HIGH COUR T RENDERED IN THE CASE OF RAJEEV SHARMA (SUPRA) IS IN THE CONTEXT OF ASSESSMENT U/S. 147 OF THE ACT. THEN WHY NOT THE SAME VIEW SHO ULD BE TAKEN IN THE PRESENT CASE ALSO. IN REPLY, LEARNED A.R. OF TH E ASSESSEE HAD NOTHING TO SAY. 6. LEARNED D.R. OF THE REVENUE SUBMITTED THAT THE J UDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADD HA (SUPRA) SHOULD BE FOLLOWED IN PREFERENCE TO THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAJEEV SHARMA ( SUPRA) BECAUSE THE JUDGMENT OF HONBLE DELHI HIGH COURT IS IN THE CONTEXT OF SECTION I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 14 153A WHEREAS THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IS IN THE CONTEXT OF SECTION 147 OF THE ACT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF RAJEEV SHARMA (SUPRA) IS IN THE CONTEXT OF ASSESSMENT U/S. 147 WHEREAS THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA (SUPRA) IS IN THE CONTEXT OF ASSESSMENT U/S. 153A A ND IN THIS JUDGMENT, IT WAS HELD THAT THE REQUIREMENT OF ISSUE AND SERVICE OF NOTICE U/S. 143(2) IS NOT APPLICABLE IN THE ASSESSM ENT MADE IN COMPLIANCE TO NOTICE U/S. 153A. WE ALSO FIND THAT I N THE CASE OF RAJEEV SHARMA(SUPRA), THE DECISION OF HONBLE ALLAH ABAD HIGH COURT IS IN FAVOUR OF THE ASSESSEE BUT THE SAME IS IN THE CONTEXT OF SECTION 147 OF THE ACT. WE HAVE ALREADY CONSIDERED BOTH THE SE JUDGMENTS IN A CASE AND HAVE DECIDED THE ISSUE AGAINST THE ASSES SEE BY FOLLOWING THE JUDGMENT OF HONBLE DELHI HIGH COURT AND THE JU DGMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAJEEV SHARMA (SUPRA) WAS NOT FOLLOWED BECAUSE THE THIS JUDGMENT IS IN TH E CONTEXT OF SECTION 148 ASSESSMENT AND NOT ASSESSMENT U/S. 153A . NO OTHER JUDGMENT HAS BEEN BROUGHT TO OUR NOTICE BY LEARNED A.R. OF THE ASSESSEE WHICH IS IN THE FAVOUR OF THE ASSESSEE AND IS IN THE CONTEXT OF ASSESSMENT U/S. 153A OF THE ACT. THEREFORE, IN T HE PRESENT CASE ALSO, WE FOLLOW THE JUDGMENT OF HONBLE DELHI HIGH COURT AND DECIDE THE ISSUE AGAINST THE ASSESSEE. ACCORDINGLY, GROUND NO. 3 & 4 OF THE ASSESSEE ARE ALSO REJECTED. 20. IN VIEW OF THE AFORESAID JUDICIAL PRONOUNCEME NTS AND OUR FINDINGS, WE ARE NOT HESITANT IN HOLDING THE ISSUE AGAINST TH E ASSESSEE. ACCORDINGLY, GROUND NO. 2 RAISED BY THE REVENUE IS ALLOWED. 21. SINCE WE HAVE ALLOWED GROUND NO. 2, GROUND NOS . 3, 4, 5 & 6 PERTAINING TO SECTION 292BB DO NOT REQUIRE ADJUDICA TION AT THIS STAGE. GROUND NOS. 1 & 7 ARE GENERAL IN NATURE AND ARE DIS POSED OFF IN VIEW OF OUR FINDINGS HEREINABOVE. ACCORDINGLY, THE APPEAL O F THE REVENUE IN I.T.A. NO. 362/COCH/2015 IS ALLOWED. I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 15 22. NOW WE SHALL TAKE UP THE CROSS OBJECTION FIL ED BY THE ASSESSEE IN C.O. NO.24/COCH/2015 ARISING OUT OF REVENUES APPEA L IN I.T.A. NO.362/COCH/2015. C.O. NO. 24/COCH/2015 : AY 2001-02 23. SINCE THE REVENUES APPEAL HAS BEEN ALLOWED BY US, NECESSARILY, THE ISSUE ON MERITS WHICH HAS NOT BEEN CONSIDERED BY LD . CIT(A), HAS TO BE CONSIDERED BY LD. CIT(A). THE GROUNDS RAISED IN THE CROSS OBJECTION IS ONLY W.R.T. NON-CONSIDERATION OF ISSUE ON MERITS BY THE LD. CIT(A). THEREFORE, THE CROSS OBJECTION BEARING NO. 24/COCH/ 2015 IS TO BE ALLOWED FOR STATISTICAL PURPOSES. IT IS ORDERED AC CORDINGLY. 24. NOW WE SHALL TAKE UP THE APPEALS OF THE REVENU E IN I.T.A. NOS. 417-420/COCH/2015 ALONGWITH CROSS OBJECTIONS OF THE ASSESSEE IN C.O. NOS.25-28/COCH/2015. 25. SINCE THE ISSUES IN THE REVENUES APPEALS ARE IDENTICAL AS IN THE REVENUES APPEAL IN I.T.A. NO. 362/COCH/2015 AND CR OSS OBJECTION BEARING C.O. NO. 24/COCH/2015 DECIDED BY US HEREINA BOVE, ACCORDINGLY, OUR ORDER HEREINABOVE SHALL BE IDENTICALLY APPLICAB LE TO THE REVENUES APPEALS IN I.T.A. NOS. 417-420/COCH/2015 AND CROSS OBJECTIONS OF THE ASSESSEE BEARING C.O. NO. 25-28/COCH/2015. ACCORDI NGLY, THE I.T.A. NOS.362, 417-420/COCH/2015 & C.O. NOS. 24-28/COCH/2015 16 REVENUES APPEALS IN I.T.A NOS. 417-420/COCH/2015 A RE ALLOWED AND THE CROSS OBJECTIONS OF THE ASSESSEE BEARING C.O. NOS. 25-28/COCH/2015 ARE ALLOWED FOR STATISTICAL PURPOSES. 26. IN THE RESULT, THE APPEALS FILED BY THE REVEN UE IN I.T.A. NOS.362 & 417-420/COCH/2015 ARE ALLOWED AND THE CROSS OBJECTI ONS FILED BY THE ASSESSEE IN C.O. NOS. 24-28/COCH/2015 ARE ALLOWED F OR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 01-02-2016. SD/- SD/- (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 1ST FEBRUARY,2016 GJ COPY TO: 1. SHRI E. SHAMSUDEEN, KONCHERIL VEGETABLES, EDAPALLI KOTTA, KOLLAM. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL C IRCLE, KOLLAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-IV, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T.,COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN