Kishan Kumar Bansal, MAKRANA V. ITO, MAKRANA

ITA 138/JODH/2014

• Counselvise Citation: 13823314 RSA 2014
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-07-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Application of stay; Question of law; Reason to believe
• Section: 143(3); 234B; 147; 68; 148; 139

Judgement Text

IN TH E INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI , ACCOUNTANT MEMBER. ITA NO S . 136, 137 & 138 /JODH/201 4 (A.YS. 1994 - 95 TO 1996 - 97 ) SHRI KISHAN KUMAR BANSAL , VS. ITO, WARD - 1, NEAR HOME SIGNAL , MAKRANA MAKRANA PAN NO. A JBPB 002 H (APPELLANT) (RESPONDENT) ASSESSEE BY : S HRI DEEPENDRA MOHAN, MS. PRARTHANA JHAL AN DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 2 2 / 0 7 /201 4 . DATE OF PRONOUNCEMENT : 30 /0 7 /201 4 . O R D E R PER HARI OM MARATHA , J .M THESE THREE APPEALS BY THE ASSESSEE FOR A.YS. 1994 - 95 TO 1996 - 97, ALTHOUGH FILED AGAINST SEPARATE ORDER OF THE LD. CIT(A), HAVE BEEN HEARD TOGETHER AND I NVOLVE ALMOST IDENTICAL GROUNDS. THEREFORE, WE ARE 2 PROCEEDING TO DISPOSE THEM OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, CONGRUENCE AND BREVITY. ITA NO. 136 /JU /201 4 [A.Y. 1994 - 95] 2. TH IS IS AN APPEAL BY THE ASSESSEE FOR A.Y. 1994 - 95 DIRECTED AGAINST THE ORDER DATED 23 / 1 2 /201 3 OF L D . CIT(A), JODHPUR . 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS PROPRIETOR OF M/S K.K. BANSAL & CO. MAKRANA. FOR A.Y. 1994 - 95 , HE FILED HIS RETURN OF INCOME [ROI] ON 31.8.1994 DECLARING TOTAL INCOME OF RS. 1, 44 , 4 50/ - WITHIN DUE TIME . SUBSEQUENTLY , A NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 [THE ACT FOR SHORT] WAS ISSUED ON 14.3.2001 AND THE ASSESSEE COMPLIED WITH THIS NOTICE BY FILING RETURN OF INCOME DECLARING SAME INCOME AS WAS DECLARED IN THE ORIGINAL RETURN AND THIS COMPLIANCE WAS MADE O 23.4.2001. THE GOVERNMENT OF INDIA, CBDT, LAUNCHED A VOLUNTARY DISCLOSURE OF INCOME SCHEME [VDIS] ON 18.06.1997, WHICH CAME INTO FORCE ON 1 ST JULY 1997. THE ASSESSEE VOLUNTARILY DISCLOSED BOGUS SUNDRY DEBTORS FOR TAXATION BUT DID NOT PAY DUE TAX THEREON WITHIN THE PERMITTED TIME AS SPECIFIED UNDER VDIS PROVIDING THE DEFAULTER AN OPPORTUNITY TO DISCLOSE THEIR INCOME AT THE PREVAILING TAX RATES UNDER THE 3 UMBRELLA PROTECTION OF IMMUNITY FROM MAJOR LAWS RELATING TO ECONOMIC OFFENCES, ETC. THE ABOVE SCHEME WAS LAUNCHED UNDER THE TERMS AND CONDITIONS WHICH ARE AS UNDER: THE SCHEME WILL COVER ALL PERSONS, CORPORATE OR NON - CORPORATE. THE TAX PAYABLE ON THE DISCLOSED INCOME WILL BE 30% IN THE CASE OF INDIVIDUALS AND 35% IN THE CASE OF OTHER DECLARANTS, VIZ, CORPORATES AND FIRMS. THE TAX ON THE VOLUNTARILY DISCLOSED INCOME OR WEALTH WOULD HAVE TO BE PAID BEFORE MAKING THE DECLARATION, AND PROOF OF SUCH PAYMENT MUST BE ATTACHED ALONG WITH THE DECLARATION. HOWEVER, WHERE TAX IS PAID WITHIN THREE MONTHS OF THE FILLING OF THE DE CLARATION, INTEREST TWO PER CENT FOR EVERY MONTH OR PART OF A MONTH WILL BECOME CHARGEABLE. IF SUCH TAX IS NOT PAID WITHIN THREE MONTHS OF FILING THE DECLARATION, IT WILL BE DEEMED TO BE VOID . I) THE PERSON MAKING A DISCLOSURE WOULD HAVE TO FILE A DECLARATION IN A PRESCRIBED FORM BEFORE THE COMMISSIONER OF I - T. THE COMMISSIONER SHALL, ON AN APPLICATION MADE BY THE DECLARANT, GRANT A CERTIFICATE TO HIM SETTING FORTH THE PARTICULARS OF THE VOLUNTARILY DISCLOSED INCOME AND THE A MOUNT OF I - T PAID IN RES PECT OF THE SAME. A PERSON MAY MAKE A DECLARATION IN RESPECT OF ANY INCOME CHARGEABLE TO TAX FOR ANY ASSESSMENT YEAR PRIOR TO THE ASSESSMENT YEAR 1998 - 99: 4 A. FOR WHICH HE HAS FAILED TO FURNISH A RETURN UNDER SECTION 139 OF THE I - T ACT. B. FOR WHICH HE HAS FAI LED TO DISCLOSE IN A RETURN OF INCOME FURNISHED BY HIM UNDER THE I - T ACT BEF ORE THE DATE OF COMMENCEMENT OF THE ACT. C. WHICH HAS ESCAPED ASSESSMENT IN TERMS OF SECTION 147 AS IT STOOD PRIOR TO 1.4.1989 AND THEREAFTER. II) THE AMOUNT OF VOLUNTARILY DISCLOSED INCOME SHALL BE ALLOWED TO BE CREDITED BY THE DECLARANT IN THE BOOKS OF ACCOUNT, IF ANY MAINTAINED BY HIM FOR ANY SOURCE OF INCOME OR ANY OTHER RECORD. THE CREDIT SO MADE SHOULD BE INTIMATED TO THE ASSESSING OFFICER. THE VOLUNTARILY DISCLOSED INCOME WILL N OT BE INCLUDED IN THE TOTAL INCOME OF THE DECLARANT FOR THE PURPOSE OF ASSESSMENT FOR ANY YEAR UNDER THE I - T ACT. THERE WILL BE NO ASSESSMENT PROCEEDING IN RESPECT OF THE DISCLOSED INCOME AND THE TAX LIABILITY IN RESPECT OF SUCH INCOME WILL BE FINALLY SETT LED ON PAYMENT OF THE TAX UNDER THE SCHEME, WHERE THE VOLUNTARILY DISCLOSED INCOME IF REPRESENTED BY ANY CASH, BULLION, INVESTMENT IN SHARES OF ANY OTHER ASSETS, WEALTH TAX SHALL NOT BE PAYABLE BY THE DECLARANT IN RESPECT OF SUCH ASSETS. 5 III) ALL PARTICULARS CONTAINED IN A DECLARATION WILL BE TREATED AS CONFIDENTIAL AND NO COURT OR AUTHORITY WILL BE ENTITLED TO REQUIRE ANY PUBLIC SERVANT OR THE DECLARANT TO PRODUCE BEFORE IT ANY SUCH DECLARATION OR PART THEREOF OR TO GIVE ANY EVIDENCE IN THIS REGARD. TAX ON THE DISCLOSURE WAS DEPOSITED LATE BY ONE DAY. CONSEQUENTLY , DECLARATION MADE BY THE ASSESSEE WAS NOT ACCEPTED BY THE CIT - II, JODHPUR AND NO REQUISITE CERTIFICATE WAS ISSUED BY HIM. AFTER GETTING APPROVAL FROM THE ADDITIONAL CIT, RANGE - III, JODHPUR, NOTI CE U/S 148 OF THE ACT WAS ISSUED. BEING A GGRIEVED, THE ASSESSEE APPROACHED THE HON'BLE JURISDICTIONAL HIGH COURT BY FILING WRIT PETITION IN WHICH THE HON'BLE HIGH COURT STAYED THE ASSESSMENT PROCEEDINGS INITIATED AGAINS T U/S 147/148 OF THE ACT BY PASSING AN INTERIM ORDER DATED 21.7.2001 ON 27.12.2012. THE HIGH COURT PASSED JUDGMENT DISMISSING THE WRIT PETITION AND CONSEQUENTLY, STAY OF THE ASSESSMENT PROCEEDINGS WAS ALSO VAC A TED. THE ASSESSMENT PROCEEDINGS WERE UNDERTAKEN AND THE DISCLOSED AM OUNT WAS ADDED. THE A.O. ALSO MA D E OTHER ADDITIONS AFTER DISALLOWING EXPENSES DEBITED IN THE PROFIT AND LOSS ACCOUNT AND ALSO MADE TRADING ADDITION APART FROM MAKING ADDITION U/S 68 OF THE ACT REGARDING BOGUS SUNDRY CREDITORS. AGGRIEVED, THE ASSESSEE WEN T IN APPEAL AND THE LD. CIT(A) HAS 6 GIVEN PART RELIEF TO THE ASSESSEE. ASSESSEE IS FURTHER AGGRIEVED AND HAS FILED THIS SECOND APPEAL BEFORE THE APPELLATE TRIBUNAL. 4. BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS WHICH WERE TAKEN FROM THE VERY BEGINNING FROM BOTH THE SIDES. 5. BEFORE THE FIRST APPELLATE AUTHORITY, ONE GROUND WAS RAISED THAT AFTER VACATION OF THE STAY, THE A.O. HAS FAILED TO ISSUE NOTICE U/S 143(2) OF THE ACT. THEREFORE, REASSESSMENT ORDER HAS BECOME VOID AB INITIO AND IS LIAB LE TO BE ANNULLED. THE ASSESSEE HAD FILED APPEAL BEFORE THE LD. CIT(A) AND HAD RAISED THE ABOVE GROUND BY WAY OF ADDITIONAL GROUND WHICH WAS DISMISSED BY THE LD. CIT(A). NOW THE ASSESSEE IS FURTHER AGGRIEVED AND HAS FILED THIS APPEAL BY RAISING THE FOLLO WING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT ADMITTING AND ADJUDICATING THE ADDITIONAL GROUND OF APPEAL RAISED BEFORE HIM WITH RESPECT TO NON - ISSUE OF NOTICE U/S 132(2) OF THE ACT, 1961. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON F ACTS IN UPHOLDING THE REASSESSMENT ORDER PASSED U/S 143(3) R.W.S 147 OF THE ACT OF THE ACT WITHOUT ISSUING STATUTORY NOTICE 7 143(2) OF THE ACT AFTER THE STAY PROCEEDINGS STOOD VACATED BY THE HONBLE RAJASTHAN HIGH COURT . THE RE - ASSESSMENT ORDER IS, THEREFORE , VOID AND SHOULD BE ANNULLED. 3. THAT THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON THE FACTS IN CALCULATING EXCESSIVE INTEREST U/S 234 AMOUNTING TO R S . 10,770/ - AND U/S 234B AMOUNTING TO RS. 7,74,840/ - WITHOUT EXCLUDING THE PERIOD OF STAY PROCEE D IN G S GRANT E D BY THE HONBLE RAJASTHAN HIGH COURT . 4. THAT THE ORDER PASSED BY THE AUTHORITIES BELOW IS BAD IN LAW AND AGAINST THE FACTS OF THE CASE. 5. THAT ANY OTHER RELIEF OR RELIEFS DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE MAY BE GRANTED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. IT WAS REITERATED BEFORE US BY THE LD. A.R. THAT WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT WHICH IS A MANDATORY NOTICE, NO ASSESSMENT PROCEEDINGS CAN BE COMPLETED. IT IS FURTHER ARGUED THAT THE PROVISIONS OF SECTION 292BB BEING PROSPECTIVE, WOULD NOT RECTIFY THIS DEFECT AND THEREFORE, IN THE LIGHT OF THE VARIOUS DECISIONS AND JUDGMENTS CITED BEFORE US, THE ASSESSMENT ORDER HAS BECOME NULL AND VOID AND IS LIABLE TO BE QUASHED. 8 7. ON THE OTHER HAND, THE LD. D.R. HAS SUPPORTED THE ACTION OF THE AUTHORITIES BELOW. HE HAS ARGUED THAT WHEN THE ASSESSEE DID NOT RAISE THIS LEGAL ISSUE IN THE ORIGINAL APPEAL FILED BEFORE THE LD. CIT(A) , THE LD. CIT(A) HAS CORRECT LY NOT ADMITTED THIS ADDITIONAL ISSUE AND HAS CORRECTLY DISMISSED THE SAME. HE HAS JUSTIFIED THE ADDITIONS MADE ON MERITS OF THE CASE. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THE LEGAL ISSUE RAISED IN THIS APPEAL GOES TO THE VERY R OOT OF THE CASE. THIS LEGAL ISSUE WAS RAISED BEFORE THE LD. CIT(A) AS THE ADDITIONAL GROUND OF APPEAL. ANY LEGAL GROUND EVEN IF IT WAS NOT RAISED BEFORE ANY AUTHORITIES BELOW, CAN BE RAISED FOR THE FIRST TIME IN CASE NO FURTHER INVESTIGATION OF FACTS IS REQUIRED. IN THIS REGARD, DECISION OF THE HON'BLE SUPREME COURT RENDERED IN THE CASE OF NTPC VS. CIT REPORTED IN 229 ITR 383 [SC] IS RELEVANT. IN THIS JUDGMENT, IT HAS BEEN HELD THAT THE TRIBUNAL HAS JURISDICTION TO EXAMINE THE QUESTION OF LAW WHICH ARIS ES FROM FACTS AS FOUND BY THE INCOME TAX AUTHORITY AND HAS BEARING ON THE TAX LIABILITY OF THE ASSESSEE, THE ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE ARE TO BE ADMITTED. HOWEVER, BEFORE THIS TRIBUNAL, THE ASSESSEE HAS MAINLY RAISED GROUND NOS. 1 AND 2 IN THIS REGARD. THE HONBLE PUNJAB & HARYANA HIGH 9 COURT IN THE CASE OF VIJAY KUMAR JAIN VS. CIT REPORTED IN 99 ITR 349 [P & H] HAS EVEN GONE TO THE EXTENT IN HOLDING THAT THE TRIBUNAL MAY ALLOW A PARTY TO PRESS A GROUND WHICH HE DID NOT PRESS BEFORE THE FIRS T APPELLATE AUTHORITY ALTHOUGH TAKEN AND INCLUDED IN THE GROUNDS OF THE FIRST APPEAL. THERE ARE OTHER NUMEROUS DECISIONS IN THIS REGARD. THEREFORE, NOW WE WILL EXAMINE AS TO WHETHER THE ISSUE OF ISSUANCE OF NOTICE U/S 143(2) IS MANDATORY OR NOT. SECTION 143( 2 ) READS UNDER: 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 ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUIRE HIM, ON A DA TE 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;] 10 (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE ( I ), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED 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: (III) [ 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.] FROM THE BARE READING OF THE ABOVE SECTION, IT BECOMES AMPLY CLEAR THAT THIS IS A MANDATORY NOTICE. WIT HOUT ISSUANCE THEREOF, NO FURTHER PROCEEDINGS CAN BE PURSUED AND COMPLETED BY THE A.O. THE ASSESSEE HAS RELIED ON VARIOUS DECISIONS IN THIS REGARD WHICH ARE AS UNDER: (I) HON'BLE SUPREME COURT IN THE CASE OF ASSTT. CIT V. HOTEL BLUE MOON [2010] 321 ITR 362, HAS HELD THAT THE ISSUE OF NOTICE UNDER S. 143(2) WITHIN PRESCRIBED TIME IS MANDATORY. 11 II) HON'BLE ALLAHABAD HIGH COURT IN CIT VS RAJEEV SHARMA (2011) 336 ITR 678 HAS BEEN HELD THAT AFTER RECEIVE OF RETURN IN RESPONSE TO NOTICE U/S 148, IT IS MANDATORY F OR THE A.O. TO SERVE A NOTICE U/S 143(2) AFTER RECEIVED OF FRESH RETURN, THE ENTIRE PROCEDURE ADOPTED FOR ASSESSMENT SHALL BE INVALID FOR THE NON - ISSUANCE OF NOTICE U/S 143(2) III) DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT V. CEBON INDIA LTD. [2012] 347 ITR 583 IN WHICH IT WAS HELD AS UNDER : 'CIT(A) AS WELL AS THE TRIBUNAL HAVING RECORDED CONCURRENT FINDING THAT THE NOTICE UNDER S. 143(2) WAS NOT SERVED ON THE ASSESSEE WITHIN THE STIPULATED TIME, IMPUGNED ASSESSMENT WAS NOT VALID; ABSENCE OF NOTICE IS NOT A CURABLE DEFECT UNDER S. 292BB.' IV) DECISION OF GUJARAT HIGH COURT IN THE CASE OF DY. CIT MAHI VALLEY HOTELS & RESORTS [2006] 287 ITR 360 IN WHICH IT WAS HELD 'NOTICE UNDER S. 143(2) HAVING BEEN ISSUED BEYOND THE STATUTORY PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED, CIT(A) AND THE TRIBUNAL WERE CORRECT IN HOLDING THAT THE ASSESSMENT WAS VOID AB INITIO; CONTENTION THAT THE OBJECTIO N RAISED BY THE ASSESSEE WAS NOT MAINTAINABLE AS IT WAS RAISED FOR THE FIRST TIME BEFORE THE CIT(A) AND THAT THERE WAS ACQUIESCENCE AND/OR WAIVER ON THE 12 PART OF THE ASSESSEE AS IT HAD PARTICIPATED IN THE PROCEEDINGS HAS NO MERIT.' FURTHER, THE FOLLOWING CASE LAWS HAVE ALSO CATEGORICALLY HELD THAT IN THE ABSENCE OF NOTICE UNDER SECTION 143(2) MAKES REASSESSMENT NULL AND VOID AS NOTICE U/S. 143(2) IS MANDATORY: I) CIT VS. MUNDRA NAN VATI (BOMBAY HIGH COURT) (2009) 227 CTR 387 BOM. II) CIT VS . PAWAN GUPTA (2008) 304 ITR 177 (DEL.) III) CIT VS. VIRENDR A KUMAR AGARWAL APPEAL NO. 2429 OF 2009 DT. 7/1/2010 (BOM. HC ) THEREFORE, IN THE LIGHT OF THE ABOVE JUDGMENT, IT BECOMES EVIDENT THAT THE A.O. IS BOUND TO ISSUE NOTICE U/S 143(2) AFTER STAY WAS VACATE D BY THE HIGH COURT AND WITHOUT THAT THE A.O. WAS NOT EMPOWERED TO PROCEED FURTHER. AFTER RECEIPT OF THE RETURN IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT, IT IS MANDATORY FOR THE A.O. TO SERVE A NOTICE U/S 143(2) OF THE ACT AFTER RECEIPT OF FRESH RE TURN. OTHERWISE, THE ENTIRE PROCEDURE ADOPTED FOR ASSESSMENT SHALL BE INVALID FOR NON ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AS IS CLEARLY HELD BY THE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJIV SHARMA [SUPRA]. THE LD. D.R. ARGUED THAT NON ISSUAN CE OF NOTICE U/S 143(2) OF THE ACT CAN BE RECTIFIED UNDER THE 13 PROVISIONS OF SECTION 292BB OF THE ACT. THIS ARGUMENT WAS REPELLED BY THE LD. A.R. STATING THAT THIS SECTION BEING PROCEDURAL IN NATURE, AS CLEARLY HELD BY THE FOLLOWING: 1. BOMBAY HIGH COURT IN THE DECISION OF CIT V/S SALMAN KHAN IN ITA NO 2362 OF 2009 DT. 06.06.2011 2. MUMBAI ITAT IN THE CASE OF ITO V/S SHRI NAROTTAMDAS GOEL IN ITA NO. 5854/MUM/2006 DT. 18.09.2012 3. SPECIAL BENCH OF DEL ITAT IN KUBER TOBACCO PRODUCTS PVT. LTD. VS. DCIT REPORTED IN 117 ITD 273 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THIS ISSUE IS ALSO IN FAVOUR OF THE ASSESSEE BECAUSE THE HONBLE PUNJAB & HARYANA HIGH COURT HAVE TAKEN A FAVOURABLE VIEW TO THE ASSESSEE WHILE DECIDING TH E CASE IN THE CASE OF V IJAY KUMAR JAIN VS. CIT [SUPRA] APART FROM OTHERS MENTIONED ABOVE. 10. WE HAVE FOUND THAT THE A.O. HAS FAILED TO ISSUE REQUISITE NOTICE U/S 143(2) OF THE ACT AND THIS DEFECT IS NOT RECTIFIABLE U/S 292BB OF THE ACT. OTHERWISE ALSO, WHEN TWO VIEWS ARE POSS IBLE, THE ONE FAVOURING THE 14 ASSESSEE HAS TO BE TAKEN AND ADOPTED IN THE LIGHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LIMITED REPORTED IN 88 ITR 192 [SC] AND SIMILAR VIEW HAS BEEN TAKEN BY THIS BENCH IN THE CASE OF SU PRIYA KANWAR VS. ITO ITA NO. 362/JU/2010 DATED 13.5.2014. 11. THE PLEA THAT THE CONCERNED A.O. WAS NOT INTIMATED ABOUT THE VACATION OF THE STAY ORDER AND DISMISSAL OF THE WRIT PETITION IS OF NO AVAIL BECAUSE THE REVENUE WAS REPRESENTED IN COURT AND OTHERW ISE ALSO EVERYBODY IS BOUND TO BE VIGILANT IN SUCH CASES WHICH ARE GOING ON BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. AS A RESULT, WE HOLD THAT THE ASSESSMENT ORDER IN THIS CASE IS AB INITIO VOID. WE QUASH THE ASSESSMENT ORDER AND ALLOW THE APPEAL OF THE ASSESSEE. 12. IN T HE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 13. IN A.YS 1995 - 96 AND 1996 - 97, THE FACTS, EVIDENCE AND ARGUMENTS OF THE PARTIES ARE MUTATIS MUTANDIS SAME AND SIMILAR. EXCEPT FOR THE AMOUNT OF ADDITION, OTHER FACTS ARE EXACTLY I DENTICAL AND ESPECIALLY THE FACTS OF THE LEGAL ISSUE. THEREFORE, WITH SIMILAR REASONING, WE HOLD THAT THE 15 ASSESSMENT ORDER FRAMED IN THESE A.YS. ARE ALSO NULL AND VOID AB INITIO AND QUASHED. 14. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEE IN ITA NOS. 136,137 & 138/JODH/2014 FOR A.YS. 1994 - 95 TO 1996 - 97 STAND ALLOWED. ( ORDER PRONO UNCED IN THE COURT ON 30 TH JULY , 201 4 ) . SD/ - SD/ - (N.K.SAINI) ( HARI OM MARATHA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH JU LY , 201 4 . VL/ COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR .