M/s. Chinmay Financial Services, Ahmedabad V. ITO, ward-5(2)(3), Ahmedabad

ITA 130/AHD/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1140 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-04-2020
• Assessment Year: 2010-2011
• Appeal Filed On: 01-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Assessee Lawyers: CHHAJED
• Keywords: Income from undisclosed sources; Period of limitation; Accommodation entries; Procedural lapse; Block assessment; Time period of passing order; Reason to believe
• Section: 143(3); 142(1); 292BB; 143(2); 158BC; 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) [THROUGH VIRTUAL COURT] ITA. NO: 130/AHD/2019 (ASSESSMENT YEARS: 2010-11) M/S. CHINMAY FINANCIAL SERVICES, 107, AATISH ANNEXURE, GULBAI TEKRA, AHMEDABAD PAN NO. AAFFC5412P I.T.O, WARD-5(2)(3), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.S. CHHAJED A.R. RESPONDENT BY : SHRI R. R. MAKWANA, SR. D.R. ( )/ ORDER DATE OF HEARING : 17-06-2021 DATE OF PRONOUNCEMENT : 30 -06-2021 PER MAHAVIR PRASAD, J.M. 1. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED CIT(A)) ORDER NO. CIT(A)- 5/ITO-WD.5(2)(3)/10738/2017-18 ORDER DATED 24/08/2018 ARISING OUT OF ITA NO. 130/AHD/2019 . A.Y. 2010-11 2 ASSESSMENT ORDER DATED 03.11.2017. ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER PASSED BY THE LD .CIT(A) IS AGAINST THE LAW, EQUITY AND JUSTICE. 2. THE LD.CIT(A) HAS ERRED IN LAW & FACTS IN APPEALING THE VALIDITY OF THE ORDER OF LD. A.O. INSPITE THE NOTICE U/S 143(2) OF THE ACT ARE SERVED AFTER LIMITATION PERIOD. 3. THE LD.CIT(A) HAS ERRED IN LAW & FACTS IN APPEALING THE ADDITION OF RS. 3,60,7507- AS UNACCOUNTED INCOME. 4. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTER OR MODIFY ALL OR ANY GROUNDS OF APPEAL BEFORE FINAL APPEAL. 2. THE PRESENT APPEAL IS TIME BARRED BY 49 DAYS AND IN SUPPORT OF ITS CONTENTION, ASSESSEE HAS FILED AN AFFIDAVIT AND STATED THEREIN THAT ON ACCOUNT OF MISCOMMUNICATION BETWEEN THE BRIEFING THE CHARTERED ACCOUNTANT AND THE ARGUING CHARTERED ACCOUNTANT BEFORE THE ITAT. IT APPEARS TO BE GENUINE REASON AND WE ARE SATISFIED WITH THE SAME AND CONDONE THE DELAY AND PROCEED WITH THE APPEAL. 3. IN THIS CASE, ASSESSEE E-FILED THE RETURN OF INCOME ON 15/10/2010 DECLARING TOTAL INCOME OF RS. 1,23,090/- FOR A.Y. 2010-11. THE CASE WAS RE-OPENED ON ACCOUNT OF NMS INFORMATION AND NOTICE U/S 148 OF THE ACT WAS ISSUED ON 29/03/2017 AND DULY SERVED UPON THE ASSESSEE BY SPEED POST. IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT THE ASSESSEE FILED RETURN OF INCOME ON 31/03/2017 DECLARING TOTAL INCOME AT RS. 1,23,090/-. THEREAFTER, NOTICE U/S 142(1) R.W.S. 129 WAS ISSUED ON 09/08/2017 AND DULY SERVED UPON THE ASSESSEE ASKING FOR COMPLIANCE ON 18/08/2017. 4. LD. A.O. MENTIONED IN HIS LETTER THAT AS PER THE INFORMATION RECEIVED FROM THE PR. DDIT (INV.), UNIT-3(1), KOLKATA, IT IS SEEN THAT CLIENT/MEMBERS OF NMCE ITA NO. 130/AHD/2019 . A.Y. 2010-11 3 WERE FOUND TO HAVE BEEN INVOLVED IN CREATING ARTIFICIAL VOLUME AND SUSPECTED EVASION OF INCOME TAX BY MISUSE OF NMCE PLATFORM. IN THIS CONNECTION, SURVEY ACTION U/S. 133(A) CONDUCTED BY THE PR. DIT (INV.), AHMEDABAD OF THE PREMISES OF NATIONAL MULTI COMMODITY EXCHANGE AND BACKUP OF THE NMCE TRADE WAS TAKEN. AFTER ANALYSIS OF THE DATA CERTAIN ENTITIES WERE IDENTIFIED WHO HAD BOOKED CONTRIVED LOSSES. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE OFFICE OF THE PR. DIT (INV.), AHMEDABAD, INQUIRIES WERE CONDUCTED AND IT WAS FOUND THAT THESE ENTRY OPERATORS ACCEPTED THAT THESE COMPANIES ARE SHELL/ POPPER COMPANIES AND ENGAGED IN PROVIDING ACCOMMODATION ENTRIES IN VARIOUS FARMS TO THE BENEFICIARIES. 5. IN THIS CONNECTION, LD. A.O. SERVED NOTICE TO THE ASSESSEE ONE OF THE BENEFICIARIES FOR AN AMOUNT OF RS. 3,60,750/- PERTAINING TO A.Y. 2010-11. YOU ARE THEREFORE REQUIRED TO SHOW CAUSE AS TO WHY THE BENEFIT OF RS. 3,60,750/- RECEIVED BY YOU ON ACCOUNT OF ACCOMMODATION ENTRY SHOULD NOT BE TREATED AS YOUR INCOME OF THE YEAR UNDER CONSIDERATION. 6. THEREAFTER FOLLOWING REPLY WAS FILED BY THE APPELLANT. ASSESSEE RECEIVED THE NOTICE FOR THE ABOVE MATTER DATED 26.09.2017 AND IN REPLY WITH THE SAME AND WE ARE SUBMITTING FOLLOWING DETAILS. POINT NO. 12 OF YOUR LETTER DATED 09.08.2017 WE WOULD LIKE TO CLARIFY THAT WE ARE SUBMITTING TRADING ACTIVITY IN DIFFERENT EXCHANGES LIKE MCX NCDEX ACEL AND NMCE COMMODITIES/SHARES. AND THE TRANSACTIONS ONE IN ALL THE EXCHANGES ARE GENUINE. AND WE HAVE MADE ACTUAL PROFIT/LOSS IN THE BUSINESS. FOR THE SAME DETAILS ARE ATTACHED HEREWITH. SR. NO. NAME OF THE BROKER PAN ADDRESS ATTACHMENTS 1 CHANDRAKANT P. THAKKAR ABNPT7684B RAWAT WADI, GANDHI ROAD, AHMEDABAD-380001 CONFIRMATION STATEMENT, SAMPLE COPY OF SOME BILLS 2 PINNACLE BROCOM PVT. LTD. AADCP 8584C 205/206, MARATHON MAXIMA, NR. NIRMAL LIFESTYLE, LBS CONFIRMATION LETTER, COPY OF LEDGER AND SAMPLE ITA NO. 130/AHD/2019 . A.Y. 2010-11 4 MARG, MULUND ( W), MUMBAI - 400080 COPY OF SOME BILLS 3 PINNACLE FOREX PVT. LTD. AAECP8829P B - 204, SUKH TOWER, MIRAMBIKA SCHOOL ROAD, NARANPURA, AHMEDABAD- 380013 CONFIRMATION STATEMENT 4 SHINE FUTURES ARVPP3587F C - 18, SHIVALAY AOPARTMENT WONDER POINT LANE, AMRAIWADI, AHMEDABAD-26 CONFIRMATION LEDGER, SAMPLE COPY OF SOME BILLS 5 DIVYA COMMODITIES AAQPT3390Q 218, ISCON ARCADE OPP PARISIMA COMPLEX (JADE BLUE), C.G. ROAD, AHMEDABAD- 380009 CONFIRMATION LEDGER SAMPLE COPY OF SOME BILLS. FOR THE SAME YOU CAN ISSUE THE NOTICE U/S. 133(5) OF INCOME TAX ACT, 1961 TO THE ABOVE MENTIONED MEMBERS OF THE PARTICULAR EXCHANGES. 7. THE LD. A.O. DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE AND MADE ADDITION OF RS. 3,60,750/-. 8. AGAINST THE SAID ADDITION, ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE LD. A.O. AND HELD THAT ASSESSEE HAS MADE TRANSACTION MADE IN BOOKING OF BOGUS/PROFIT FOR RS. 3,60,750/-. 9. NOW ASSESSEE HAS COME BEFORE US. AT THE OUTSET, ASSESSEE CHALLENGED THE ACTION OF THE LOWER AUTHORITIES THAT NOTICE U/S 143(2) WAS NOT SERVED WITHIN THE LIMITATION PERIOD WHICH CONTEMPLATE SECTION 143(2): WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142, THE ASSESSING OFFICER SHALL,- (I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN IS INADMISSIBLE, SERVE ITA NO. 130/AHD/2019 . A.Y. 2010-11 5 ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUIRE HIM ON A DATE TO BE SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE OR PARTICULARS SPECIFIED THEREIN OR ON WHICH THE ASSESSEE MAY RELY, IN SUPPORT OF SUCH CLAIM: [PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY OF JUNE, 2003;] (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (F), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT733 TO ENSURE THAT THE ASSESSEE HAS NOT UNDER- STATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER- PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: [PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED.]] 10. AT THE OUTSET, LD. A.R. STATED THAT SINCE NOTICE U/S 143(2) WAS NOT ISSUED WITHIN PRESCRIBED LIMIT SO ALL PROCEEDINGS ARE HELD TO BE VITIATED. BECAUSE AS PER SECTION 143(2) OF THE ACT, A.O. HAS TO SERVE NOTICE TO THE ASSESSEE BEFORE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR FOR WHICH RETURN IS FILED. 11. IN THIS CASE, RETURN WAS FILED ON 15/10/2010 DECLARING TOTAL INCOME OF RS. 1,23,090/- AND A NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 11/10/2017. SO, IT IS CLEAR FROM THE ASSESSMENT ORDER THAT NOTICE WAS NOT SERVED WITHIN TIME. ITA NO. 130/AHD/2019 . A.Y. 2010-11 6 12. IN SUPPORT OF ITS CONTENTION, ASSESSEE FILED AN ORDER OF CO-ORDINATE BENCH IN ITA NO. 121/AHD/2018 TITLED AS DCIT VS. M/S SPECIFIC CERAMICS LTD. WHEREIN SIMILAR FACTS AND CIRCUMSTANCES RELIEF WAS GRANTED TO THE ASSESSEE WITH FOLLOWING OBSERVATIONS: 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RAISES TWO SITUATIONS AS DETAILED UNDER: 1. WHETHER THE ASSESSMENT MADE UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT WITHOUT ISSUING THE NOTICE UNDER SECTION 143(2) IS VALID. AND 2. WHETHER THE PROVISION OF SECTION 292B IS ATTRACTED IN THE GIVEN FACTS AND CIRCUMSTANCE SO AS TO MAKE THE ASSESSMENT VALID. 9.1 ADMITTEDLY, THE RETURN WAS FILED BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. THE RETURN FILED UNDER SECTION 148 OF THE ACT IS DEEMED TO HAVE FILED UNDER SECTION 139 OF THE ACT. THEREFORE ALL THE PROVISION SPECIFIED UNDER SECTION 139 OF THE ACT COMES INTO PLAY TO A RETURN FILED UNDER SECTION 148 OF THE ACT. THE RELEVANT PROVISIONS OF SECTION 148 OF THE ACT READ AS UNDER: [ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. 148. [(1)] BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147, THE ASSESSING OFFICER SHALL SERVE49 ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS 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 REQUIRED TO BE FURNISHED UNDER SECTION 139 :] 9.2 WE FURTHER NOTE THAT THE EXPRESSION USED UNDER SECTION 148 OF THE ACT I.E. 'SO FOR AS MAY BE' HAS BEEN INTERPRETED BY THE HON'BLE APEX COURT IN THE CASE OF R DALMIA VS. CIT REPORTED IN 236 ITR 480, THAT ONCE THE RETURN FILED UNDER SECTION 148 OF THE ACT THEN IN MAKING THE ASSESSMENT AND THE REASSESSMENT UNDER SECTION 147 OF THE ACT THE PROVISIONS SUBSEQUENT TO THE PROVISION OF SECTION 139 OF THE ACT HAS TO BE FOLLOWED. THE RELEVANT EXTRACT OF THE JUDGMENT IS REPRODUCED AS UNDER: ITA NO. 130/AHD/2019 . A.Y. 2010-11 7 'IT IS NO DOUBT THAT ASSESSMENTS UNDER SECTION 143 AND ASSESSMENTS AND REASSESSMENTS UNDER SECTION 147 ARE DIFFERENT, BUT IN MAKING ASSESSMENTS AND REASSESSMENTS UNDER SECTION 147 THE PROCEDURE LAID DOWN IN SECTIONS SUBSEQUENT TO SECTION 139, INCLUDING THAT LAID DOWN BY SECTION 144B, HAS TO BE FOLLOWED' FROM THE ABOVE JUDGMENT, THERE REMAINS NO AMBIGUITY THAT THE PROCEDURAL PROVISIONS FOR MAKING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT HAS TO BE FOLLOWED. THEREFORE, IT IS MANDATORY UPON THE REVENUE TO ENSURE THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT EVEN IN THE ASSESSMENT FRAMED UNDER SECTION 147 OF THE ACT. 9.3 WE ALSO FIND SUPPORT AND GUIDANCE FROM THE ORDER OF SPECIAL BENCH OF DELHI IN THE CASE OF RAJ KUMAR CHAWLA V/S ITO REPORTED IN 145 TAXMAN 12 WHEREIN IT WAS HELD AS UNDER: 'SECTION 148 DOES NOT PROVIDE ANY METHODOLOGY FOR COMPUTING THE INCOME ON REASSESSMENT OR ASSESSMENT. ON THE CONTRARY, IT CREATES A LEGAL FICTION THAT SUCH RETURN SHALL BE TREATED AS ONE MADE UNDER SECTION 139. BY THE CREATION OF SUCH LEGAL FICTION ALL THE PROCEDURES PRESCRIBED IN AND SUBSEQUENT TO SECTION 139 AUTOMATICALLY APPLY IN TOTO. IT IS A SETTLED PRINCIPLE THAT A LEGAL FICTION HAS TO BE TAKEN TO ITS LOGICAL CONCLUSION AND, THEREFORE, WHAT IS VALID FOR A RETURN UNDER SECTION 139 WILL BE VALID WITH EQUAL FORCE TO A RETURN FILED UNDER SECTION 148. THEREFORE, THE PROVISO WILL APPLY TO A RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. CLAUSE (B) OF SECTION 158BC SPECIFICALLY TALKS OF THE APPLICABILITY OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 143. THERE IS AN OMISSION OF SUB-SECTION (1) OF SECTION 143. THIS CHAPTER CLEARLY PRESCRIBES ITS OWN RETURN, FORM OF OWN METHODOLOGY FOR COMPUTATION OF INCOME BUT FALLS BACK ON THE PROVISIONS OF SECTIONS 142, 143 AND 144 ETC., ONLY FOR PROCEDURAL ASPECT. IF THE PROVISO IS MADE APPLICABLE, THEN A CLASH ERUPTS BETWEEN THE PROVISIONS OF CHAPTER XIV-B WITH SECTION 143(2) AS THE ASSESSMENT IS MANDATORY UNDER THIS CHAPTER. [PARA 31' WE ALSO FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON'BLE KERALA HIGH COURT IN THE CASE OF LALLY JACOB V/S ITO REPORTED IN 197 ITR 439 WHEREIN IT WAS HELD AS UNDER: 'A READING OF SECTIONS 147 AND 148 MAKES IT CLEAR THAT, AT ANY RATE, AN ASSESSMENT FOR THE FIRST TIME MADE BY RESORT TO SECTION 147 IS A REGULAR ASSESSMENT. SECTION 148 ENJOINS THE INCOME-TAX OFFICER BEFORE MAKING AN ASSESSMENT UNDER SECTION 147 TO SERVE A NOTICE ON THE ASSESSEE CONTAINING ALL OR ANY OF THE REQUIREMENTS WHICH MAY BE INCLUDED IN A NOTICE UNDER SUB-SECTION (2) ITA NO. 130/AHD/2019 . A.Y. 2010-11 8 OF SECTION 139. THE FURTHER PROVISION IN THAT SECTION IS VERY SIGNIFICANT WHICH PROVIDES THAT THE AFORESAID NOTICE HAS TO BE TREATED AS IF IT IS A NOTICE UNDER SECTION 139(2) AND THAT ALL THE PROVISIONS OF THE ACT SHALL APPLY TO THE SUBSEQUENT PROCEDURE AND THE FINAL ASSESSMENT. IN OTHER WORDS, THE NOTICE ISSUED UNDER SECTION 148 HAS TO BE DEEMED TO BE A NOTICE UNDER SECTION 139(2) AND, IF THE OTHER PROVISIONS OF THE ACT HAVE TO BE APPLIED, AN ASSESSMENT IN PURSUANCE OF THAT CAN BE MADE ONLY UNDER SECTION 143 OR SECTION 144. WE WERE NOT SHOWN ANY OTHER PROVISION BY WHICH THE INCOME- TAX OFFICER IS AUTHORISED TO MAKE AN ORDER OF ASSESSMENT UNDER THE ACT. THE PROVISIONS CONTAINED IN SECTION 140A ALSO GIVE AN INDICATION THAT AN ASSESSMENT MADE IN PURSUANCE OF A NOTICE UNDER SECTION 148 IS A REGULAR ASSESSMENT UNDER SECTION 143 OR SECTION 144, FOR SECTION 140A(2) PROVIDES THAT ANY ADMITTED TAX PAID IN PURSUANCE OF SECTION 140A(1) SHALL BE DEEMED TO HAVE BEEN PAID TOWARDS THE REGULAR ASSESSMENT UNDER SECTION 143 OR SECTION 144. IT IS PERTINENT TO NOTE THAT SECTION 140A(1) DEALS WITH A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 OR SECTION 148. THAT MAKES THE PROVISION CLEAR THAT AN ASSESSMENT MADE UNDER SECTION 147 ALSO WILL BE A REGULAR ASSESSMENT UNDER SECTION 143 OR SECTION 144. ACCORDINGLY, WE HOLD THAT ANY ASSESSMENT MADE FOR THE FIRST TIME BY RESORT TO SECTION 147 WILL ALSO BE A REGULAR ASSESSMENT FOR THE PURPOSE OF INVOKING SECTION 217 OF THE ACT. WITH GREAT RESPECT, WE DISSENT FROM THE VIEW EXPRESSED IN CERTAIN DECISIONS REFERRED TO EARLIER IN THIS JUDGMENT WHICH TAKE A CONTRARY VIEW.' (P. 452)' 10. THUS IN VIEW OF THE ABOVE WE CONCLUDE THAT THE AO WAS UNDER THE OBLIGATION TO ISSUE A NOTICE UNDER SECTION 143(2) OF THE ACT FOR MAKING THE ASSESSMENT OR REASSESSMENT AS THE CASE MAY BE. BUT THE AO HAS NOT DONE SO. ACCORDINGLY, THE ORDER FRAMED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT BECOMES INVALID. 11. WE FURTHER NOTE THAT THE PROVISIONS OF SECTION 292BB OF THE ACT DEALS WITH THE SITUATION WHERE NOTICE IS NOT SERVED OR NOT SERVED ON TIME OR SERVED IN A IMPROPER MANNER VIZ A VIZ THE ASSESSEE DOES NOT RAISE OBJECTION BEFORE THE COMPLETION OF THE ASSESSMENT. AS SUCH, THE PROVISION OF SECTION 292BB OF THE ACT DOES NOT DEAL ABOUT THE ISSUANCE OF NOTICE. IN THE PRESENT CASE, THE ISSUE IS WHETHER THE ASSESSMENT FRAMED UNDER SECTION 147/143(3) OF THE ACT IS VALID WITHOUT THE ISSUANCE OF THE MANDATORY NOTICE UNDER SECTION 143(2) OF THE ACT. ACCORDINGLY WE HOLD THAT, THE PROVISION OF SECTION 292BB OF THE ACT DOES NOT EXTEND ANY BENEFIT TO THE REVENUE. ITA NO. 130/AHD/2019 . A.Y. 2010-11 9 12. IN HOLDING SO WE FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF PCIT V/S MARCK BIOSCIENCES LTD. REPORTED IN 106 TAXMANN.COM 399 WHEREIN IT WAS HELD AS UNDER; 'THE FACTS AS EMERGING FROM THE RECORD SHOW THAT IT IS AN ADMITTED POSITION THAT NO NOTICE UNDER SECTION 143(2) HAD BEEN ISSUED AFTER THE ASSESSEE INFORMED THE ASSESSING OFFICER TO TREAT THE EARLIER RETURN OF INCOME AS THE RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. IN OTHER WORDS, NO NOTICE UNDER SECTION 143(2) WAS ISSUED AFTER THE FILING OF THE RETURN OF INCOME. THE QUESTION THAT, THEREFORE, ARISES FOR CONSIDERATION IS WHETHER THE ASSESSMENT ORDER FRAMED UNDER SECTION 143(3) READ WITH SECTION 147, WOULD BE RENDERED INVALID IN THE ABSENCE OF A NOTICE UNDER SECTION 143(2) OF THE ACT? ON A PLAIN READING OF PROVISION OF SECTION 143(2), IT IS MANIFEST THAT IT CONTEMPLATES THAT WHEN AN ASSESSEE FILES A RETURN UNDER SECTION 143 AND THE ASSESSING OFFICER FINDS THAT ANY CLAIM AS DESCRIBED THEREIN IS INADMISSIBLE, HE IS REQUIRED TO SERVE A NOTICE TO THE ASSESSEE SPECIFYING PARTICULARS OF SUCH CLAIM AND A DATE ON WHICH HE SHOULD PRODUCE OR CAUSE TO BE PRODUCED, ANY EVIDENCE OR PARTICULARS SPECIFIED THEREIN ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF SUCH CLAIM. FURTHER, FROM THE LANGUAGE EMPLOYED IN SECTION 292BB OF THE ACT, IT EMERGES THAT A NOTICE WOULD BE DEEMED TO BE VALID IN THE THREE CIRCUMSTANCES PROVIDED THEREIN, NAMELY, WHERE THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT WOULD NOT BE PERMISSIBLE FOR HIM TO RAISE OBJECTION THAT (I) THE NOTICE WAS NOT SERVED UPON HIM; OR (II) WAS NOT SERVED UPON HIM IN TIME; OR (III) WAS SERVED UPON HIM IN AN IMPROPER MANNER. THUS, ALL THE CIRCUMSTANCES CONTEMPLATED UNDER SECTION 292BB OF THE ACT ARE IN A CASE WHERE A NOTICE HAS BEEN ISSUED, BUT HAS EITHER NOT BEEN SERVED UPON THE ASSESSEE OR NOT SERVED IN TIME OR HAS BEEN SERVED IN AN IMPROPER MANNER. THE SAID PROVISION CLEARLY DOES NOT CONTEMPLATE A CASE WHERE NO NOTICE HAS BEEN ISSUED AT ALL IN THE FACTS OF THE PRESENT CASE, IF THE CONTENTION OF THE ASSESSEE WERE TO BE ACCEPTED, IT WOULD AMOUNT TO DISPENSING WITH THE NOTICE UNDER SECTION 143(2) OF THE ACT IN VIEW OF THE FACT THAT IT IS AN ADMITTED POSITION THAT NO SUCH NOTICE HAD BEEN ISSUED AFTER THE RETURN OF INCOME WAS FILED BY THE ASSESSEE. AFTER THE FILING OF THE RETURN OF INCOME, UNLESS A NOTICE UNDER SECTION 143(2) OF THE ACT IS ISSUED TO THE ASSESSEE, HE WOULD HAVE NO MEANS OF KNOWING AS TO WHETHER OR NOT THE ASSESSING OFFICER HAS ACCEPTED THE RETURN OF INCOME AS FILED BY HIM. AS HELD BY THE SUPREME COURT, OMISSION TO ISSUE A NOTICE UNDER SECTION 143(2) IS NOT A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. IT IS, THEREFORE, MANDATORY TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT. SECTION 292BB PROVIDES FOR A DEEMING PROVISION THAT ANY NOTICE UNDER ANY PROVISION OF THE ACT, WHICH IS REQUIRED TO BE SERVED UPON THE ASSESSEE, HAS BEEN DULY SERVED UPON HIM IN TIME, IN ITA NO. 130/AHD/2019 . A.Y. 2010-11 10 ACCORDANCE WITH THE PROVISIONS OF THE ACT. THIS SECTION WOULD BE APPLICABLE WHERE A NOTICE HAS, IN FACT, BEEN ISSUED AND A CONTENTION IS RAISED THAT SUCH NOTICE HAS NOT BEEN SERVED UPON THE ASSESSEE OR HAS NOT BEEN SERVED IN TIME OR HAS NOT BEEN SERVED PROPERLY, NAMELY, WHERE THERE IS A DEFECT IN THE SERVICE OF NOTICE. THIS PROVISION DOES NOT APPLY TO A CASE WHERE NO NOTICE HAS BEEN ISSUED AT ALL. IN THE FACTS OF THE PRESENT CASE, AT THE COST OF REPETITION, IT MAY BE STATED THAT NO NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED AFTER THE ASSESSEE HAD FILED ITS RETURN OF INCOME AND HENCE, SECTION 292BB WOULD NOT BE ATTRACTED. IN THE LIGHT OF THE FACT THAT NON-ISSUANCE OF A NOTICE UNDER SECTION 143(2) IS NOT A PROCEDURAL IRREGULARITY, THE SAME CANNOT BE CURED UNDER SECTION 292BB OF THE ACT AND HENCE, THE ASSESSMENT ORDER PASSED WITHOUT ISSUANCE OF NOTICE UNDER SECTION 143(2) WOULD BE RENDERED INVALID. THE TRIBUNAL AS WELL AS THE COMMISSIONER (APPEALS), THEREFORE, DID NOT COMMIT ANY ERROR IN HOLDING THAT THE NOTICE ISSUED PRIOR TO THE FILING OF THE RETURN OF INCOME WAS INVALID AND THAT, IN ABSENCE OF A VALID NOTICE UNDER SECTION 143(2) THE ASSESSMENT ORDER WAS RENDERED INVALID.' 12.1 WE ALSO FIND IMPORTANT TO REFER THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. PANORAMA BUILDERS PVT. LTD. REPORTED IN 45 TAXMANN.COM 159 WHEREIN IT WAS HELD AS UNDER: '14. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT SECTION 292BB DOES NOT APPLY TO ISSUANCE OF NOTICE, NEITHER IT CURES THE DEFECT OR ENLARGES STATUTORY PERIOD WHERE A MANDATORY NOTICE UNDER SECTION 143(2) OF THE ACT IS REQUIRED TO BE ISSUED WITHIN LIMITATION FIXED UNDER THE ACT. IN ABSENCE OF ISSUANCE OF THE NOTICE UNDER THE PROVISO TO SECTION 143(2) OF THE ACT WITHIN A PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FURNISHED BY THE ASSESSEE, THE PROCEEDINGS INITIATED BY THE ASSESSING OFFICER WITH REGARD TO BLOCK ASSESSMENT PERIOD 1.4.1997 TO 25.7.2002 ON THE BASIS OF NOTICE ISSUED ON 6.7.2006 UNDER SECTION 143(2), AFTER ABOUT 20 MONTHS, WAS TIME BARRED AND THE ENTIRE PROCEEDINGS IN PURSUANCE OF SUCH NOTICE IS NULL AND VOID.' IN VIEW OF THE ABOVE, WE CONCLUDE THAT THERE WAS NOT ISSUED THE STATUTORY NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE PRESCRIBED TIME. THE LD. DR HAS ALSO NOT BROUGHT ANYTHING ON RECORD CONTRARY TO THE ARGUMENTS ADVANCED BY THE LD. AR FOR THE ASSESSEE. THUS IN THE ABSENCE OF THE STATUTORY NOTICE, THE ASSESSMENT FRAMED UNDER SECTION 143(3)/147 OF THE ACT IS NOT SUSTAINABLE. HENCE THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 12.2 AS WE HAVE ADDRESSED THE TECHNICAL ISSUE RAISED BY THE ASSESSEE, ACCORDINGLY WE REFRAIN OURSELVES FROM ADJUDICATING THE ISSUE RAISED BY THE ASSESSEE ON MERIT. AS SUCH THE ISSUES RAISED BY ITA NO. 130/AHD/2019 . A.Y. 2010-11 11 THE ASSESSEE ON MERIT BECOME INFRUCTUOUS AND NO SEPARATE ADJUDICATION IS REQUIRED. ACCORDINGLY WE DISMISS THE ISSUES RAISED BY THE ASSESSEE ON MERIT. 13. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN PART. 13. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES, CO-ORDINATE BENCH HAS GIVEN RELIEF TO THE ASSESSEE THUS, IN PARITY WITH THE SAID ORDER, WE ALLOW THE APPEAL OF THE ASSESSEE. WE DO NOT WANT TO GO INTO THE MERIT OF THE CASE AS RELIEF HAS ALREADY GRANTED TO THE ASSESSEE ON TECHNICAL GROUND. 14. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 06- 2021 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 30/06/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD