ACIT, New Delhi V. M/s. Dimension Promoters Pvt. Ltd., New Delhi

ITA 1105/DEL/2011

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4277 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-06-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 01-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: SANJEEV BAJAJ
• Keywords: Question of law; Block assessment; Reason to believe; Reassessment proceedings
• Section: 143(3); 142(1); 148

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH B, NEW DELHI BEFORE : SHRI H.S. SIDHU., JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 1105/DEL./2011 ASSESSMENT YEAR: 2002-03 A.C.I.T., CIRCLE 10(1), NEW DELHI. (APPELLANT) VS. M/S. DIMENSION PROMOTERS PVT. LTD. G-29, VARDHMAN TOWER, G-BLOCK, COMMUNITY CENTRE, VIKASPURI, NEW DELHI (PAN-AABCD8766A) (RESPONDENT) C.O. NO. 326/DEL./2011 (IN ITA NO. 1105/DEL./2011) ASSESSMENT YEAR: 2002-03 M/S. DIMENSION PROMOTERS PVT. LTD. G-29, VARDHMAN TOWER, G-BLOCK, COMMUNITY CENTRE, VIKASPURI, NEW DELHI. (APPELLANT) VS. A.C.I.T., CIRCLE 10(1), NEW DELHI. (RESPONDENT) REVENUE BY MS. ASHIMA NEB. SR. DR ASSESSEE BY SH. SANJEEV BAJAJ, CA ORDER PER T.S. KAPOOR, A.M.: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 02.11.2010. THE ASSESSEE HAS ALSO FILE D CROSS-OBJECTIONS, RAISING VARIOUS LEGAL ISSUES. DATE OF HEARING 01.01.2018 DATE OF PRONOUNCEMENT 02 .01.2018 ITA NO. 1105 & C.O. NO. 326/DEL./2011 2 2. AT THE OUTSET, THE LD. AR TOOK UP GROUND NO. 3 O F CROSS OBJECTONS, WHICH RELATES TO NON-ISSUE OF NOTICE U/S. 143(2) OF THE I T ACT. THE LD. AR INVITED OUR ATTENTION TO THE ORDER OF ASSESSMENT AND SUBMITTED THAT NOWHERE IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MENTIONED A BOUT THE ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. FURTHER INVITING OUR ATTENTION TO THE LD. CIT(A)S ORDER, THE LD. AR SUBMITTED THAT WHEN THIS GROUND W AS RAISED BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS HELD THAT NON-ISSUE OF N OTICE U/S. 143(2) BY ITSELF CANNOT BE SAID TO VITIATE THE ASSESSMENT PROCEEDING S. IT WAS SUBMITTED THAT FROM THE FINDINGS OF THE LD. ASSESSING OFFICER AND THE LD. CIT(A), IT BECOMES AMPLY CLEAR THAT NO NOTICE U/S. 143(2) WAS ISSUED T O THE ASSESSEE AND THEREFORE, THE ASSESSMENT ORDER IS LIABLE TO BE QUA SHED. RELIANCE IN THIS RESPECT WAS PLACED ON A NUMBER OF CASE LAWS MENTION ED IN PAPER BOOK PAGES A TO M, WHICH ARE AS UNDER : (I). ACIT & ANR. VS. HOTEL BLUE MOON, 321 ITR 362(S C) (II). DIRECTORATE OF INCOME TAX VS. VR EDUCATIONAL TRUST, 2013(12) TMI 745 (DELHI HIGH COURT) (III). ALPINE ELECTRONICS ASIA PVT. LTD. VS. DGIT, 341 ITR 247 (DEL.) (IV). DALMIA (R) VS. CIT, 236 ITR 480 (SC) (V). CIT VS. PAWAN GUPTA, 318 ITR 322 (DEL.) (VI). DCIT VS. M/S. SILVER LINE 2014(10) TMI 141 IT AT DELHI (VII). CIT VS. RAJEEV SHARMA, 336 ITR 247 (DEL.) (VIII). ITO VS. SMT SUKHINI P. MODI, 295 ITR (AT) 1 69 (AHMEDABAD BENCH) (IX). UKT SOFTWARE TECHNOLOGIES PVT LTD VS. ITO, 20 13 (1) TM 1678- ITAT DELHI. (X). CIT VS. MUKESH KUMAR AGGARWAL, 345 ITR 29 ITA NO. 1105 & C.O. NO. 326/DEL./2011 3 (XI). CIT VS. M/S. PARIKALPANA ESTATE DEVELOPMENT ( P) LTD., 2012 (10) TMI 617 (XII). CIT VS. M/S. CEBAN INDIA LTD., 347 ITR 583 ( P&H) 3. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT DUE N OTICE U/S. 142(1) WAS ISSUED TO THE ASSESSEE AND THEREFORE, THERE WAS NO NEED TO ISSUE NOTICE U/S. 143(2) OF THE ACT. RELIANCE WAS PLACED ON THE ORDER OF DELHI HIGH COURT IN THE CASE OF MADHYA BHARAT ENERGY CORPORATION, 337 ITR 3 89 (DEL). 4. THE LD. AR, IN HIS REJOINDER, SUBMITTED THAT AFT ER CONSIDERING THE JUDGMENT OF MADHYA BHARAT ENERGY CORPN. (SUPRA), TH E HONBLE DELHI HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA PVT. L TD. VS. DCIT (SUPRA) AND IN V.R. EDUCATION TRUST IN APPEAL NO. 510 OF 2011 HAS AGAIN HELD THAT SERVICE OF NOTICE U/S. 143(2) IS A MANDATORY REQUIREMENT EVEN IN THE PROCEEDINGS U/S. 148 OF THE ACT. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. FROM THE FINDINGS OF THE ASSESSIN G OFFICER AND LD. CIT(A), ONE THING IS APPARENT THAT NO NOTICE U/S. 143(2) WA S ISSUED TO THE ASSESSEE AS THE LD. CIT(A) HIMSELF HAS HELD THAT MERE NON-ISSUA NCE OF NOTICE U/S. 143(2) BY ITSELF CANNOT BE SAID TO VITIATE THE ASSESSMENT PRO CEEDINGS. IN A NUMBER OF JUDGMENTS DELIVERED BY VARIOUS COURTS AND TRIBUNALS , IT HAS BEEN HELD THAT ITA NO. 1105 & C.O. NO. 326/DEL./2011 4 SERVICE OF NOTICE U/S. 143(2) IS MANDATORY REQUIREM ENT. THE HONBLE DELHI HIGH COURT IN RECENT CASE OF INDUS TOWER LIMITED VS . CIT VIDE ITS JUDGMENT DATED 29.05.2017 HAS ALSO CONSIDERED SIMILAR ISSUE BY FOLLOWING THE JUDGMENT OF HOTEL BLUE MOON, 321 ITR 366 (SC) AND CIT VS. JA I SHREE SHIV SHANKAR AND HAS AGAIN DECIDED THE ISSUE IN FAVOUR OF THE ASSESS EE BY HOLDING AS UNDER : 13. IN RESPONSE TO THE ABOVE SUBMISSIONS, MR. DILE EP SHIVPURI, LEARNED SENIOR STANDING COUNSEL FOR THE DEPARTMENT, SUBMITT ED THAT AS FAR AS SECOND SUBMISSION IS CONCERNED, THE FACTS SPEAK FOR THEMSELVES. HE HAD NOTHING FURTHER TO ADD BECAUSE THERE WAS NO EXPLANA TION FOR THE FAILURE TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT PURSUA NT TO THE NOTICE UNDER SECTION 148 OF THE ACT BEFORE 30 SEPTEMBER 2013, TH E LAST DATE BY WHICH THE NOTICE OUGHT TO HAVE BEEN ISSUED. 14..THE LAW ON THIS POINT IS FAIRLY WELL SETTLED IN THE DECISIONS IN ACIT V. HOTEL BLUE MOON 12010] 321 ITR 362 (SC) REITERATED I N CIT V. MADHYA BHARAT ENERGY CORPORATION [2011] 337 ITR 389 (DEL) A ND PRINCIPAL COMMISSIONER OF INCOME TAX V. JAI SHIV SHANKAR TRADE RS (P.) LTD. [2016]383 ITR 448 (DEL). IN THE LAST MENTIONED JUDGM ENT, THIS COURT HELD THAT THE DELAY IN ISSUING A NOTICE UNDER SECTION 14 3(2) OF THE ACT WOULD BE FATAL TO THE RE-ASSESSMENT PROCEEDINGS. 15. FOR THE AFOREMENTIONED REASONS, IT IS HELD THAT AS FAR AS THE SECOND GROUND IS CONCERNED, THE PETITIONER SHOULD SUCCEED. IN THAT VIEW OF THE MATTER, THE COURT DOES NOT CONSIDER IT NECESSARY TO EXAMINE THE FIRST GROUND OF CHALLENGE. THE IMPUGNED NOTICE DATED 22 F EBRUARY, 2013 ISSUED TO THE PETITIONER UNDER SECTION 148 OF THE A CT AS WELL AS THE CONSEQUENTIAL ORDER DATED 20TH JANUARY, 2014 DISPOS ING OF ITS OBJECTIONS AS WELL AS THE REASSESSMENT PROCEEDINGS PURSUANT TH ERETO ARE HEREBY QUASHED. SIMILAR FINDING HAS BEEN MADE BY VARIOUS COURTS IN THE DECISIONS RELIED ON BY THE LD. AR. ITA NO. 1105 & C.O. NO. 326/DEL./2011 5 6. THE CASE LAW RELIED ON BY THE LD. DR IN MADHYA B HARAT ENERGY CORPORATION (SUPRA) IS NOT APPLICABLE, AS THIS DECI SION HAS BEEN REVIEWED BY HONBLE DELHI HIGH COURT IN REVENUE PETITION NO. 44 1/2011 VIDE ORDER DATED 17 TH AUGUST, 2011. THIS FACT HAS BEEN NOTED BY THE HON BLE HIGH COURT IN THE CASE OF PR. CIT VS. SRI JAI SHIV SHANKAR TRADER PVT . LTD. AT PARA -9 WHICH READS AS UNDER. 9. DR RAKESH GUPTA, LEARNED COUNSEL APPEARING FOR THE ASSESSEE, AT THE OUTSET DREW THE ATTENTION OF THIS COURT TO AN ORDER PASSED BY THIS COURT ON 17TH AUGUST, 2011 IN REVIEW PETITION NO.441/2011 IN ITA NO.950/2008 (CUT V. MADHYA BHARAT ENERGY CORPORATION) WHEREBY TH IS COURT REVIEWED ITS MAIN JUDGMENT IN THE MATTER RENDERED ON 11TH JU LY 2011 ON THE GROUND THAT THE SAID APPEAL HAD NOT BEEN ADMITTED ON THE Q UESTION CONCERNING THE MANDATORY COMPLIANCE WITH THE REQUIREMENT OF IS SUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN ITS REVIEW ORDE R, THIS COURT NOTED THAT AT THE TIME OF ADMISSION OF THE APPEAL ON 17TH FEBR UARY, 2011 AFTER NOTICING THAT IN THE SAID CASE THAT NO NOTICE UNDER SECTION 143(2) HAD EVER BEEN ISSUED, THE COURT HELD THAT NO QUESTION OF LAW AROSE ON THAT ASPECT. THE UPSHOT OF THE ABOVE DISCUSSION IS THAT THE DECIS ION OF THIS COURT IN CIT V. MADHYA BHARAT ENERGY CORPORATION (SUPRA) IS NOT OF ANY ASSISTANCE TO THE REVENUE AS FAR AS THE ISSUE IN THE PRESENT CASE IS CONCERNED. THEREFORE, THIS JUDGMENT IS ALSO NOT RELEVANT AND I N VIEW OF THE FACTS DISCUSSED ON THE JUDGMENT RELIED ON BY THE LD. DR, THIS IS DI STINGUISHABLE ON THE FACTS. 7. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHRI JAI SHIV SHANKAR PVT. LTD. (SUPRA) HAS ALSO CONSIDERED THE JUDGMENT OF DE LHI HIGH COURT IN THE CASE ITA NO. 1105 & C.O. NO. 326/DEL./2011 6 OF MANDHYA BHARAT ENERGY CORPORATION (SUPRA) AND HA S ALSO CONSIDERED THE DECISION IN THE CASE OF CIT VS. VISION INC. (SUPRA) AND AFTER CONSIDERING THESE JUDGMENTS, HONBLE HIGH COURT DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE WHEREIN IT HAS BEEN DECIDED THAT EVEN IN THE CASES COVERED U/S. 148, THE ISSUANCE OF NOTICE U/S. 143(2) IS A MANDATORY REQUI REMENT. THE RELEVANT PART OF THE ORDER OF DELHI HIGH COURT IS REPRODUCED BELO W : 9 DR RAKESH GUPTA, LEARNED COUNSEL APPEARING FOR T HE ASSESSEE, AT THE OUTSET DREW THE ATTENTION OF THIS COURT TO AN ORDER PASSED BY THIS COURT ON 17TH AUGUST, 2011 IN REVIEW PETITION NO.441/2011 IN ITA NO.950/2008 (CIT V. MADHYA BHARAT ENERGY CORPORATION) WHEREBY TH IS COURT REVIEWED ITS MAIN JUDGMENT IN THE MATTER RENDERED ON 11TH JU LY 2011 ON THE GROUND THAT THE SAID APPEAL HAD NOT BEEN ADMITTED ON THE Q UESTION CONCERNING THE MANDATORY COMPLIANCE WITH THE REQUIREMENT OF IS SUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN ITS REVIEW ORDE R, THIS COURT NOTED THAT AT THE TIME OF ADMISSION OF THE APPEAL ON 17TH FEBR UARY, 2011 AFTER NOTICING THAT IN THE SAID CASE THAT NO NOTICE UNDER SECTION 143(2) HAD EVER BEEN ISSUED, THE COURT HELD THAT NO QUESTION OF LAW AROSE ON THAT ASPECT. THE UPSHOT OF THE ABOVE DISCUSSION IS THAT THE DECIS ION OF THIS COURT IN CIT V. MADHYA BHARAT ENERGY CORPORATION (SUPRA) IS NOT OF ANY ASSISTANCE TO THE REVENUE AS FAR AS THE ISSUE IN THE PRESENT CASE IS CONCERNED. 10. MS AGGARWAL NEVERTHELESS URGED THAT NOTWITHSTAN DING THE ABOVE POSITION, THE DECISION OF THIS COURT IN CIT V. VISI ON INC. (2012) 73 DTR 201 (DEL) WOULD APPLY. THE SAID JUDGMENT HELD THAT SINC E ON THE FACTS OF THAT CASE THE ASSESSEE HAD BEEN PROPERLY SERVED WITH THE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE STATUTORY TIME LIMIT P RESCRIBED UNDER THE PROVISO THERETO, THE ITAT SHOULD NOT HAVE SET ASIDE THE RE-ASSESSMENT IN TOTO. MS AGGARWAL PLACED RELIANCE ON SECTION 292BB OF THE ACT AND URGED THAT THE ASSESSEE HAVING NOT RAISED ANY OBJECTION A BOUT NON SERVICE OF THE NOTICE UNDER SECTION 143(2) OF THE ACT EITHER AT AN Y TIME BEFORE THE AO OR PRIOR TO, OR DURING THE REASSESSMENT PROCEEDINGS, T HE ASSESSEE WAS PRECLUDED FROM RAISING SUCH AN OBJECTION IN THE SUB SEQUENT OF THE PROCEEDINGS. ITA NO. 1105 & C.O. NO. 326/DEL./2011 7 11. DR RAKESH GUPTA FOR THE ASSESSEE ON THE OTHER H AND PLACED RELIANCE ON A LARGE NUMBER OF DECISIONS OF THE HIGH COURTS APAR T FROM THE DECISION OF THE SUPREME COURT IN ACIT V. HOTEL BLUE MOON (SUPRA) . HE SUBMITTED THAT THE FAILURE TO ISSUE A NOTICE UNDER SECTION 143(2) OF THE ACT SUBSEQUENT TO THE ASSESSEE HAVING INFORMED THE AO THAT THE RETURN ORIGINALLY FILED SHOULD BE TREATED AS THE RETURN FILED PURSUANT TO THE NOTI CE UNDER SECTION 148 OF THE ACT, WAS FATAL TO THE ORDER OF RE-ASSESSMENT. 12.THE NARRATION OF FACTS AS NOTED ABOVE BY THE COUR T MAKES IT CLEAR THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUE D TO THE ASSESSEE AFTER 16TH DECEMBER 2010, THE DATE ON WHICH THE ASSESSEE INFORMED THE AO THAT THE RETURN ORIGINALLY FILED SHOULD BE TREATED AS TH E RETURN FILED PURSUANT TO THE NOTICE UNDER SECTION 148 OF THE ACT. 13. IN DIT V. SOCIETY FOR WORLDWIDE INTERBANK FINANC IAL TELECOMMUNICATIONS (2010) 323 ITR 249 (DEL), THIS COU RT INVALIDATED AN REASSESSMENT PROCEEDINGS AFTER NOTING THAT THE NOTI CE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED TO THE ASSESSEE PU RSUANT TO THE FILING OF THE RETURN. IN OTHER WORDS, IT WAS HELD MANDATORY T O SERVE THE NOTICE UNDER SECTION 143(2) OF THE ACT ONLY AFTER THE RETU RN FILED BY THE ASSESSEE IS ACTUALLY SCRUTINIZED BY THE AO. 14. THE INTERPLAY OF SECTIONS 143 (2) AND 148 OF THE ACT FORMED THE SUBJECT MATTER OF AT LEAST TWO DECISIONS OF THE ALLAHABAD H IGH COURT. IN CIT V. RAJEEV SIT ANNA (2011) 336ITR 678 (ALL.) IT WAS HELD THAT A PLAIN READING OF SECTION 148 OF THE ACT REVEALS THAT WITHIN THE S TATUTORY PERIOD SPECIFIED THEREIN, IT SHALL BE INCUMBENT TO SEND A NOTICE UND ER SECTION 143(2) OF THE ACT. IT WAS OBSERVED: THE PROVISIONS CONTAINED IN SUB-SECTION (2) OF SEC TION 143 IS MANDATORY AND THE LEGISLATURE IN THEIR WISDOM BY US ING THE WORD 'REASON TO BELIEVE' HAD CAST A DUTY ON THE ASSESSIN G OFFICER TO APPLY MIND TO THE MATERIAL ON RECORD AND AFTER BEING SATI SFIED WITH REGARD TO ESCAPED LIABILITY, SHALL SERVE NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM. IN VIEW OF THE ABOVE, AFTER RECEIPT OF RETUR N IN RESPONSE TO NOTICE UNDER SECTION 148, IT SHALL BE MANDATORY FOR THE AO TO SERVE A NOTICE UNDER SUB-SECTION 2 OF SECTION 143 ASSIGNING REASON THEREIN. IN ABSENCE OF ANY NOTICE ISSUED UNDER SUB-SECTION 2 OF SECTION 143 AFTER RECEIPT OF FRESH RETURN SUBMITTED BY THE ASSE SSEE IN RESPONSE TO ITA NO. 1105 & C.O. NO. 326/DEL./2011 8 NOTICE UNDER SECTION, THE ENTIRE PROCEDURE ADOPTED FOR ESCAPED ASSESSMENT, SHALL NOT BE VALID. 15. IN A SUBSEQUENT JUDGMENT IN CIT V. SALARPUR COLD STORAGE (P.) LTD. (2014) 50 TAXMANN.COM 105 (ALL) IT WAS HELD AS UNDE R: 10. SECTION 292 BB OF THE ACT WAS INSERTED BY THE FINANCE ACT, 2008 WITH EFFECT FROM 1 APRIL 2008. SECTION 292 BB OF THE ACT PROVIDES A DE EMING FICTION. THE DEEMING FICTION IS TO THE EFFECT THAT ONCE THE ASSE SSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UN DER THE PROVISIONS OF THE ACT, WHICH IS REQUIRED TO BE SERVED ON THE ASSE SSEE, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROV ISIONS OF THE ACT. THE ASSESSEE IS PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY THAT THE NOTICE WAS (I) NOT SERVED UPON HIM ; OR (II) NOT SERVED UPON HIM IN TIME; OR (III) SERVED UPON HIM IN AN IM PROPER MANNER. IN OTHER WORDS, ONCE THE DEEMING FICTION COMES INTO OP ERATION, THE ASSESSEE IS PRECLUDED FROM RAISING A CHALLENGE ABOUT THE SERVIC E OF A NOTICE, SERVICE WITHIN TIME OR SERVICE IN AN IMPROPER MANNER. THE PR OVISO TO SECTION 292 BB OF THE ACT, HOWEVER, CARVES OUT AN EXCEPTION TO THE EFFECT THAT THE SECTION SHALL NOT APPLY WHERE THE ASSESSEE HAS RAIS ED AN OBJECTION BEFORE THE COMPLETION OF THE ASSESSMENT OR REASSESSMENT. S ECTION 292 BB OF THE ACT CANNOT OBVIATE THE REQUIREMENT OF COMPLYING WIT H A JURISDICTIONAL CONDITION. FOR THE ASSESSING OFFICER TO MAKE AN ORD ER OF ASSESSMENT UNDER SECTION 143 (3) OF THE ACT, IT IS NECESSARY TO ISSU E A NOTICE UNDER SECTION 143 (2) OF THE ACT AND IN THE ABSENCE OF A NOTICE U NDER SECTION 143 (2) OF THE ACT, THE ASSUMPTION OF JURISDICTION ITSELF WOUL D BE INVALID. A) IN THE SAME DECISION IN V. SALARPUR COLD STORAGE (P.) LTD.{ SUPRA), THE ALLAHABAD HIGH COURT NOTICED THAT THE DECISION OF T HE SUPREME COURT IN ACIT V. HOTEL BLUE MOON {SUPRA) WHERE IN RELATION TO BLOCK ASSESSMENT, THE SUPREME COURT HELD THAT THE REQUIREMENT TO ISSUE NO TICE UNDER SECTION 143(2) WAS MANDATORY. IT WAS NOT 'A PROCEDURAL IRRE GULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. THE MADRAS HIGH COURT HELD LIKEWISE IN SAPTHAGIRI FI NANCE & INVESTMENTS V. ITO (2013) 90 DTR 289 (MAD). THE FACTS OF THAT CAS E WERE THAT A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSE SSEE SEEKING TO REOPEN THE ASSESSMENT FOR AY 2000-01. HOWEVER, THE ASSESSE E DID NOT FILE A RETURN AND THEREFORE A NOTICE WAS ISSUED TO IT UNDER SECTI ON 142 (1) OF THE ACT. ITA NO. 1105 & C.O. NO. 326/DEL./2011 9 PURSUANT THERETO, THE ASSESSEE APPEARED BEFORE THE AO AND STATED THAT THE ORIGINAL RETURN FILED SHOULD BE TREATED AS A RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. THE HIGH COURT OBSERVED THAT IF THEREAFTER, THE AO FOUND THAT THERE WERE PROBLEMS W ITH THE RETURN WHICH REQUIRED EXPLANATION BY THE ASSESSEE THEN THE AO OU GHT TO HAVE FOLLOWED UP WITH A NOTICE UNDER SECTION 143(2) OF THE ACT. I T WAS OBSERVED THAT: 'MERELY BECAUSE THE MATTER WAS DISCUSSED WITH THE A SSESSEE AND THE SIGNATURE IS AFFIXED IT DOES NOT MEAN THE REST OF T HE PROCEDURE OF NOTICE UNDER SECTION 143(2) OF THE ACT WAS COMPLIED WITH OR THAT ON PLACING THE OBJECTION THE ASSESSEE HAD WAIVED THE N OTICE FOR FURTHER PROCESSING OF THE REASSESSMENT PROCEEDINGS. THE FACT THAT ON THE NOTICE ISSUED U/S 143(2) OF THE ACT, THE ASSESSEE H AD PLACED ITS OBJECTION AND REITERATED ITS EARLIER RETURN FILED A S ONE FILED IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT AN D THE OFFICER HAD ALSO NOTED THAT THE SAME WOULD BE CONSIDERED FOR CO MPLETING OF ASSESSMENT, WOULD SHOW THAT THE AO HAS THE DUTY OF ISSUING THE NOTICE UNDER SECTION 143(3) TO LEAD ON TO THE PASSI NG OF THE ASSESSMENT. IN THE CIRCUMSTANCES, WITH NO NOTICE IS SUED U/S 143(3) AND THERE BEING NO WAIVER, THERE IS NO JUSTIFIABLE GROUND TO ACCEPT THE VIEW OF THE TRIBUNAL THAT THERE WAS A WAIVER OF RIGHT OF NOTICE TO BE ISSUED U/S 143(2) OF THE ACT. 18. AS ALREADY NOTICED, THE DECISION OF THIS COURT IN CIT V. VISION INC. PROCEEDED ON A DIFFERENT SET OF FACTS. IN THAT CASE , THERE WAS A CLEAR FINDING OF THE COURT THAT SERVICE OF THE NOTICE HAD BEEN EF FECTED ON THE ASSESSEE UNDER SECTION 143 (2) OF THE ACT. AS ALREADY FURTHE R NOTICED, THE LEGAL POSITION REGARDING SECTION 292BB HAS ALREADY BEEN M ADE EXPLICIT IN THE AFOREMENTIONED DECISIONS OF THE ALLAHABAD HIGH COUR T. THAT PROVISION WOULD APPLY INSOFAR AS FAILURE OF SERVICE OF NOTI CE WAS CONCERNED AND NOT WITH REGARD TO FAILURE TO ISSUE NOTICE. IN OTHER WORDS, THE FAILURE OF THE AO, IN REASSESSMENT PROCEEDINGS, TO ISSUE NOTICE UN DER SECTION 143(2) OF THE ACT, PRIOR TO FINALISING THE RE-ASSESSMENT ORDE R, CANNOT BE CONDONED BY REFERRING TO SECTION 292BB OF THE ACT. 19. THE RESULTANT POSITION IS THAT AS FAR AS THE PRE SENT CASE IS CONCERNED THE FAILURE BY THE AO TO ISSUE A NOTICE TO THE ASSE SSEE UNDER SECTION 143(2) OF THE ACT SUBSEQUENT TO 16TH DECEMBER 2010 WHEN TH E ASSESSEE MADE A STATEMENT BEFORE THE AO TO THE EFFECT THAT THE ORIG INAL RETURN FILED SHOULD ITA NO. 1105 & C.O. NO. 326/DEL./2011 10 BE TREATED AS A RETURN PURSUANT TO A NOTICE UNDER S ECTION 148 OF THE ACT, IS FATAL TO THE ORDER OF REASSESSMENT. 8. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DECIDE THE GROUND NO. 3 OF CROSS OBJECTIONS IN FAVOUR OF THE ASSESSEE AND WE HOLD THAT THE REASSESSMENT ORDER PASSED IN THIS CASE IS BAD, VOID AB INITIO. IN VIEW OF OUR DECISION ON GROUND NO. 3, THE REST OF THE GROUNDS T AKEN IN THE CROSS OBJECTIONS DO NOT REQUIRE ANY ADJUDICATION. ACCORDINGLY, THE C ROSS OBJECTIONS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. THE APPEAL FILED BY TH E REVENUE HAS BECOME INFRUCTUOUS AND, THEREFORE, SAME IS DISMISSED. 9. IN NUTSHELL, THE CROSS OBJECTIONS FILED BY THE A SSESSEE ARE PARTLY ALLOWED AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.01.2018. SD/- SD/- (H.S. SIDHU) (T.S. KAPOO R) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 02.01.2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI