M/S. VASHDEV G. ADNANI, MUMBAI V. THE ACIT 19(1), MUMBAI

ITA 1485/MUM/2008

• Counselvise Citation: 148519914 RSA 2008
• Duration Of Justice: 6 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-07-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 29-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH RANJAN PRASAD
• Assessee Lawyers: PRAKASH PANDIT
• Keywords: Unexplained investment; Residential status; Opportunity of being heard; Principle of natural justice; Validity of assessment; Block assessment; Revised return; Documents seized
• Section: 147; 148; 132; 143(3); 142(1); 153A

Judgement Text

, Q QQ Q INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH. . , ! '#$% , # &' BEFORE S/SH.D.MANMOHAN, VICE-PRESIDEN T & RAJENDRA,ACCOUNTANT MEMBER /. ITA NOS.1485-88/MUM/2008, . . / A.Y.S.-1999-2000 TO 2001-02 & 2004-05 VASHDEV G. ADNANI, G-4, SEA CREST-2, GROUND FLOOR, 7, BUNGLOW GARDENS, ANDHERI (W), MUMBAI-400061 VS. ACIT 19(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI.-400012 PAN: ABAPA 7414M ( () / APPELLANT) ( *+() / RESPONDENT) *+!# *+!# *+!# *+!#. .. . /. C.O.NOS.15-18/MUM/2012, . . / A.Y.S.-1999-2000 TO 2001-02 & 2004-05 ACIT 19(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI.-400012 VS VASHDEV G. ADNANI, G-4, SEA CREST-2, GROUND FLOOR, 7, BUNGLOW GARDENS, ANDHERI (W), MUMBAI-400061 ( () / APPELLANT) ( *+() / RESPONDENT) /. ITA NO.2968/MUM/2011 , . . . . / ASSESSMENT YEAR-2004-2005 VASHDEV G. ADNANI, G-4, SEA CREST-2, GROUND FLOOR, 7, BUNGLOW GARDENS, ANDHERI (W), MUMBAI-400061 VS. ACIT 19(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI.-400012 ( () / APPELLANT) ( *+() / RESPONDENT) /0 /0 /0 /0 1 1 1 1 # ## # / ASSESSEE BY : SHRI PRAKASH PANDIT '' 2 1 # / REVENUE BY : SHRI RAJESH RANJAN PRASAD 2 22 2 0 0 0 0 / DATE OF HEARING : 14-11-2014 3. 2 0 / DATE OF PRONOUNCEMENT : 09-01-2015 , 1961 1961 1961 1961 2 2 2 2 254 254 254 254( (( (1 11 1) )) )# $0<0 &#= # $0<0 &#= # $0<0 &#= # $0<0 &#= ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM # # # # &' &' &' &' '#$% '#$% '#$% '#$% # ## # : CHALLENGING THE ORDER DT.02.01.2008 OF THE CIT(A)-X X , MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL FOR THE ABOVE REFERRED FOUR ASSES SMENT YEARS(AY.S.): ITA NOS.1485&1486/MUM/2008-AY: I)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN REJECTING THE APPELLANTS GROUND THAT THE ASSESSMENT HAS BEEN PASSED WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD BY IGNORING THE FACTS ST ATED IN THE STATEMENT OF FACTS. II)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE NOTICES U/S 148 AS WELL AS 142(1) WERE PROPERLY SERVED ON THE APPELLANT AND THEREBY ERRED IN CONFIRMING THE ADDITIONS WHICH WERE MADE WITHOUT GIVING PROPERTY OPPORTUNITY OF BEING HEARD. III)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE STATUS OF THE APPELLANT AS RESIDE NT WHEN IN FACT THE APPELLANT HAD RETURNED THE INCOME IN THE STATUS OF NON RESIDENT AND THAT N O EVIDENCE WAS BROUGHT RECORD BY THE ASSESSING OFFICER THAT THE APPELLANT WAS A RESIDENT OF INDIA DURING THE RELEVANT PERIOD FOR ASSESSMENT YEAR 1999-2000. IV)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING 10 % OF EXPENSES OF RS 32.488/- INSTEAD OF ALLOWING THE EXPENSES OF RS 32.488/- WHICH COMPRISED MAIN EXPENSE ON ACCOUNT OF DEPRECIATI ON OF RS 17550/-. 2 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI V)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.2,58,738/- BEING F .D'S. AS UNEXPLAINED INVESTMENT, IGNORING THE FACT THAT THE SUM TOTAL OF F.D'S IS ON ACCOUNT OF RENEWAL OF THE F D'S. OF RS 78,022/- ON 10.06 1998 BEING THE RENEWAL OF F 0 BRO UGHT FORWARD CUM EARLIER YEAR AND RENEWAL OF THE SAME ON 2409 1998. 11 12 1998 AND ON 2503.1998 VI)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW. THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO VERIFY THAT THE F.DS OF RS 1.60,579/- ARE IN THE NAME OF THE APPELLANT'S DAUGHTER MS SANJNI V ADNANI , IGNORING THE PROOF IN SUPPORT OF THE CLAIM THAT THESE F.D'S STOOD IN THE NAME OF APPELLA NTS DAUGHTER MS. SAP V. ADNANI WAS PRODUCED BEFORE THE ASSESSING OFFICER AND THE C.I.T.(A ). VII)THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY GROUND(S) OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. ITA NOS.1487 &1488/MUM/2008-AY.-: I)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN REJECTING THE APPELLANTS GROUND THAT THE ASSESSM ENT HAS BEEN PASSED WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD BY IGNORING THE FACTS ST ATED IN THE STATEMENT OF FACTS. II)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE NOTICES U/S. 148 AS WELL AS 142(1) WERE PROPERLY SERVED ON THE APPELLANT AND THEREBY ERRED IN CONFIRMING THE ADDITIONS WHICH WERE MADE WITHOUT GIVING PROPERTY OPPORTUNITY OF BEING HEARD. III)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE STATUS OF THE APPELLANT AS RESIDENT WHEN IN FACT THE APPELLANT HAD RETURNED THE INCOME IN THE STATUS OF NON RESIDENT AND THAT NO EV IDENCE WAS BROUGHT RECORD BY THE ASSESSING OFFICER THAT THE APPELLANT WAS A RESIDENT OF INDIA DURING THE RELEVANT PERIOD FOR ASSESSMENT YEAR 2001-2002. IV)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ESTIMATE OF INCOME AT RS,50,000/- AS AGAINST THE LOSS OF RS.2.16.2661- RETURNED BY THE APPELLANT. V)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS 1 .60.000/- AS UNEXPLAINED INVESTMENT, IGNORING THE FACT THAT THE DEPOSIT OF RS 1.60.000/- WAS ON ACCOU NT OF RENEWAL OF OLD F.D'S. OF RS 80.000/- EACH. VI)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO VERIFY THAT THE FD'S OF RS,1,74,425/- IS IN THE NAME OF THE APPELLANTS DAUGHTER MS. SANJNI V. ADNANI. IGNOR ING THE PROOF IN SUPPORT OF THE CLAIM THAT THIS F D STOOD IN THE NAME OF APPELLANTS DAUGH TER MS. SAP V ADNANI WAS PRODUCED BEFORE THE ASSESSING OFFICER AND THE C.I,T.(A).L VII)THE APPELLANT CRAVES LEAVE TO ADD. ALTER, AMEND OR DELETE ANY GROUND(S) OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. ITA NO.2968/M/2011-AY.2004-05: I)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE GROUND REGARDING THE ISSUE OF LIMITA TION U/S. 153 OF THE INCOME TAX ACT, 1961 IN RESPECT OF THE VALIDITY OF THE ASSESSMENT PROCEEDINGS AND THEREBY NO PENALTY COULD BE LEVIED IN THE CASE OF INVALID ASSESSMENT, ON THE GROUND THAT THIS ISSUE WAS NOT RAISED BEFOR E EITHER THE ASSESSING OFFICER OR THE CIT(A) IN APPEAL AGAINST THE ASSESSMENT ORDER U/S. 143(3). II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.L.T.(A) ERRED IN RELYING ON THE DECISION OF THE C.I.T.(A) IN APPEAL AGAINST ORDER U /S. 143(3) WITHOUT CONSIDERING THE FACTS AND LEGAL SUBMISSIONS SUBMITTED TO THE ASSESSING OFFICER AS WE LL AS TO THE CIT(A) THAT NO ADDITION ON ACCOUNT OF UNEXPLAINED CDF OF RS.1,14,97,340/- & OF CASH DEPOSIT OF RS.2, 44,076/- IN THE PUNJAB AND MAHARASHTRA CO- OP. BANK IN S.B. A/C. NO. 8534 IN COMING TO THE CONCLUSIO N THAT THE APPELLANT IS LIABLE TO LEVY OF PENALTY U/S. 271 (1)(C). III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN NOT APPRECIATING THAT PENALTY PROCEEDINGS ARE INDEPENDENT OF ASSESSME NT PROCEEDINGS AND, THEREFORE, OUGHT TO HAVE CONSIDERED THE EVIDENCE PRODUCED IN THE COURSE OF THE PENALTY PROCEEDINGS BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE C.L.T.(A). IV)THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY GROUND(S) OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS OF APPEAL FOR ALL THE AY.S. ADDITIONAL GROUNDS EXCEPT FOR THE AY.2004-5 I.E.FOR AY.S.1999-2000, 20 00-01,2001-02 READ AS UNDER: 3 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, TH E REOPENING OF THE ASSESSMENT BY ISSUE OF NOTICE U/S. 148 DATED 20/21/2006 IS BAD IN LAW THAT THE SAID NOTICE IS IS SUED WITHOUT THE SANCTION OF CIT/CCIT U/S. 151 OF I T ACT 1961 AS A NOTICE IS ISSUED BEYOND FOUR YEARS. 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED A. O. HAD NO INFORMATION ABOUT ESCAPEMENT OF ANY INCOME FOR THE YEAR UNDER APPEAL AS THE I NTIMATION FROM DDI INVESTIGATION PERTAINS TO THE PERIOD 23/21/2002 TO 30/06/2004 AND THEREFORE ERRED 'IN ISSUING NO TICE U/S. 148 AND THAT TOO WITHOUT SANCTION U/S. 151 OF I T. ACT 1961. FOR AY. 2000-01 THE SAME ABOV E TWO GROUNDS WERE TAKEN, HOWEVER FOR AY.2001-02 ONLY THE SECOND GROUND IS TAKEN BY CHALLENGING ONLY NOTICE U/S 148. ADDITIONAL GROUND TAKEN BY THE ASSESSEE FOR THE AY. 2004-05,IS AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED AO ERRED IN COMPLETING THE ASSESSMENT U/S. 147 R. W. S. 143(3) WITHOUT DISPOSI NG ORIGINAL RETURN ON 30/10/2004 AND HENCE THE ASSESSMENT IS BARRED BY LIMITATION U/S. 153 OF I.T. ACT 1961. THE ASSESSING OFFICER(AO)HAS RAISED IDENTICAL GROUN DS OF APPEAL IN THE CROSS OBJECTIONS(CO) FOR ALL THE AY.S.,VIDE HIS LETTER 01.02.2012.IN THE CO. S.THE AO HAS MENTIONED AS UNDER: THE APPELLANT HAS RAISED ADDITIONAL GROUND OF APPE AL BEFORE ITAT AS UNDER: X X X X X REGARDING THE ABOVE GROUNDS, IT IS FOUND FROM THE R ECORDS THAT NO SANCTION /APPROVAL HAS BEEN TAKEN FROM THE CIT/CCIT FOR ISSUE OF NOTICE U/S.148 OF THE INCOME TAX ACT, 1961. HOWEVER, THE CASE BEING A SEARCH CASE, THE PLEA RAISED BY THE AS SESSEE NEEDS TO BE SEEN IN THE LIGHT OF THE PROVISIONS OF SECTION 153A EXTRACTS OF WHICH IS REP RODUCED BELOW : X X X X X THE SEARCH IN THE CASE OF ABOVE MENTIONED ASSESSEE WAS CONDUCTED ON 05-01-2005. THUS, IT IS SQUARELY COVERED BY THE PROVISIONS OF SECTION 153A WHICH DO NOT REQUIRE THE SANCTIONS OR APPROVALS AS WELL AS REOPENING CRITERIA MENTIONED B Y THE ASSESSEE IN THE PLEA RAISED BEFORE THE ITAT. IT NEEDS TO BE POINTED OUT THAT ISSUING OF NOTICES ULS.148 FOR A.YRS. 1999-2000 TO 2004-05 BY THE AO IS AN INADVERTENT MISTAKE. AS SUCH, NOTICES ULS. 153A SHOULD HAVE BEEN ISSUED FOR A.YRS. 1999- 2000 TO 2004-05 AND NOT ULS.148. NOTWITHSTANDING TH E FACT THAT AN INADVERTENT MISTAKE IN NOT MENTIONING SECTION 153A IN THE BODY OF THE ORDER SH ALL NOT RENDER THE ASSESSMENTS INVALID, IF THE INTENT AND PURPOSE OF INITIATING SUCH PROCEEDINGS A ND CONSUMMATED AND IN VIEW OF WHAT IS STATED IN THE BODY OF THE ORDER WITH REGARD TO THE SEIZURE S, THE INTENT AND PURPOSE OF THE PROCEEDINGS ULS.153A AND 153B OF THE ACT ARE WELL ESTABLISHED. FURTHER, PROVISIONS OF SECTION 292B CLEARLY STATES THAT NO RETURNS OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE O F ANY OF THE PROVISIONS OF HIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASONS OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. TH US, ASSESSMENT MADE IN CASE OF ABOVEMENTIONED ASSESSEE NEEDS TO BE SEEN IN THE LIGHT OF PROVISION S OF SECTION 292B. IN THIS REGARD, AN APPROVAL IS OBTAINED BY THE CIT-19,MUMBAI VIDE HIS APPROVAL LET TER NO. CIT-19/CROSS. OBJ./VASHDEV ADNANI/2011-12 DATED 07-04-2011.. AS THERE WAS DELAY OF 1827 DAYS IN FILING THE CO.S. ,SO THE AO MOVED AN APPLICATION TO CONDON THE DELAY.IN HIS LETTER,DATED 08.02.2012,HE HAS MENTION ED AS UNDER: IN THIS CASE, THE ASSESSEE HAS RAISED AN ADDITIONA L GROUND OF APPEAL BEFORE THE HON'BLE ITAT CHALLENGING THE ISSUE OF NOTICE U/S 148 FOR AY 1999 -2000, 2000- 01, 2001-02 AND COMPLETION OF ASSESSMENT U/S 147 WITHOUT DISPOSING THE ORIGINAL R ETURN FOR AY 2004-05. 3.VIDE LETTER N0.ADDL.CIT/ITAT-V/'F' BENCH/2010-11 DATED 23-02-2011, THE SR. AR, ITAT-F BENCH, MUMBAI HAS REQUESTED TO ADDL. CIT RG.19(1), MUMBAI TO FILE CROSS OBJECTION ON THE ADDITIONAL GROUND RAISED BY THE ASSESSEE BEFORE THE HON'BLE ITAT CHALLENGING THE ISSUE OF NOTICE U/S 148 FOR AY 1999-2000, 2000-01, 2001-02 AND COMP LETION OF ASSESSMENT U/S 147WITHOUT DISPOSING THE ORIGINAL RETURN FOR AY 2004-05. 4.VIDE LETTER NO.CIT-19/CROSS OBJ./VASHDEV ADNANIJ2 011-12 DTD. 7-04-2011 APPROVAL HAS BEEN ACCORDED BY THE CIT-19, MUMBAI FOR FILING CROSS OBJ ECTION IN THE ABOVE SAID CASE. ACCORDINGLY, THE 4 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI AO HAS FILED CROSS OBJECTION IN ALL 4 ASSESSMENT YE ARS ON 15-04-2011 BUT WRONGLY TO THE ADDL. CIT (SR.AR), ITAT-V, F-BENCH, MUMBAI. 5.AFTER COMMUNICATION TO SR. AR, ITAT, A FRESH CROS S OBJECTION BEFORE THE REGISTRAR, ITAT, MUMBAI, 3RD FLOOR, CGO BUILDING, ANNEX, MUMBAI- 20 ON 31-01-2012 IN ALL FOUR ASSESSMENT YEARS. 6. DUE TO UNAVOIDABLE CIRCUMSTANCES, THE CROSS OBJE CTION IN THE ABOVE SAID CASE HAS NOT BEEN FILED WITHIN TIME. 7. IN THE INTEREST OF NATURAL JUSTICE, YOU ARE REQU ESTED TO KINDLY CONDONE DELAY IN FILING THE CROSS OBJECTION, WHICH IS PURELY UNINTENTIONAL AND ONLY P ROCEDURAL. THANKING YOU IN ANTICIPATION OF FAVOURABLE CONSIDER ATION. FROM THE ABOVE IT IS CLEAR THAT THE AO HAS NOT DESC RIBED SO-CALLED UNAVOIDABLE CIRCUMSTANCES,IN THE LETTER FILED BEFORE THE TRIBUNAL,THAT CAUSED DE LAY OF MORE THAN FIVE YEARS.ONLY ON THIS GROUND THE CO.S.CAN EASILY BE DISMISSED. BUT,WE WOULD LIKE TO DEAL WITH CO.S.,AS THE FILING OF CO.S.IS THE PART OF THE CHAIN OF EVENTS THAT ARE NOT NORMAL.FIR ST THE AO ISSUES PASSES ORDER U/S.147 WITHOUT TAKING PRIOR APPROVAL OF THE AUTHORITIES CONCERNED, THEN WHEN THE ASSESSEE RAISES ISSUE OF PRIOR APPROVAL BY RAISING ADDITIONAL GROUND BEFORE THE TR IBUNAL IT IS STATED THAT THESE MATTERS WERE COVERED BY THE PROVISIONS OF SECTION 153A OF THE AC T.BUT,STRANGELY THE JCIT IN OF HIS REPORTS AND THE AO IN REPLY TO A QUERY MADE UNDER RTI ACT STATE S THAT NO SEARCH ACTION HAD TAKEN PLACE IN THE CASE UNDER APPEAL.BESIDES,WITHOUT HIGHLIGHTING THE SO CALLED UNAVOIDABLE CIRCUMSTANCES THE AO FILED CO.S.AFTER MORE THAN 1800 DAYS.IN THE SUCCEED ING PARAGRAPHS,WE WOULD MENTION THE FACTS RELATED WITH THE CHAIN OF EVENTS,AT APPROPRIATE PLA CE. FROM THE PERUSAL OF THE GROUNDS OF THE CO.S.IT IS C LEAR THAT THE CLAIM OF THE AO IS THAT THE ASSESSMENTS WERE PASSED UNDER SECTION 153A AND NOT UNDER SECTION 147OF THE ACT,THAT THERE WAS A SEARCH IN THE CASE OF THE ASSESSEE ON 05/01/2005 AN D THEREFORE PROVISIONS OF SECTION 153A WERE APPLICABLE,THAT THERE WAS NO REQUIREMENT OF OBTAIN ING ANY SANCTIONS OR APPROVALS FROM THE HIGHER AUTHORITIES FOR ISSUING NOTICE U/S.153A OF THE ACT, THAT ISSUING OF NOTICES UNDER SECTION 148 FOR AY. 1999-2000 TO 2004-05 BY THE AO WAS AN INADVERTENT M ISTAKE,THAT NOTICES U/S. 153A SHOULD HAVE BEEN ISSUED FOR AY.1999-2000 TO 2004-05 AND NOT UND ER SECTION 148,THAT NOT MENTIONING SECTION 153A IN THE BODY OF THE ORDER SHALL NOT RENDER ASSE SSMENTS INVALID IN VIEW OF SECTION 292B OF THE ACT.THE GROUNDS OF APPEAL AND THE ADDITIONAL GROUND S OF APPEAL FILED BY THE ASSESSEE DEAL WITH MERITS OF THE CASE AS WELL AS THE JURISDICTION.THE ASSESSEE HAS RAISED OBJECTIONS ABOUT THE VALIDITY OF THE ASSESSMENTS PASSED BY THE AO FOR ALL THE FOU R AY.S.WE ARE OF THE OPINION THAT THE QUESTION OF JURISDICTION HAS TO BE DECIDED FIRST BEFORE DEAL ING WITH MERITS OF THE APPEAL. 2. FIRST OF ALL,WE WOULD LIKE TO CONSIDER THE BASIC DA TA ABOUT THE ASSESSEE FOR ALL THE FOUR AY.S. AY. RETURN FILED ON RETURNED INCOME ASSESSMENT-DA TE ASSESSED INCOME 1999-00 15.12.2006 86,887/- 29.12.2006 5, 38,642/- 2000-01 15.12.2006 1,25,785/- 29.12.2006 19,61,778/- 2001-02 21.12.2006 1,66,708/- 29.12.2006 7,67,399/- 2004-05 30.10.2004 2,45,896/- 29.12.2006 1,47,84, 077/- FROM THE RECORDS IT IS FOUND THAT ALL THE ABOVE ASS ESSMENTS WERE COMPLETED U/S.143R.W.S.147 OF THE ACT ON 29.12.2006.FOR AY.S.1999-2000,2000-2001,2001 -2002 & 2004-05 NOTICES U/S.148 WERE ISSUED BY THE ACIT-19 ON 20/2/2006.FOR THE AY.2004- 05 THE ASSESSEE FILED HIS RETURN OF INCOME ON 30/10/ 2004 AND THE AO HAD ISSUED HIM NOTICE U/S .142(1) & 143(2) DATED 17/2/2005. 3. AGAISNT THE ORDERS OF THE AO,THE ASSESSEE FILED APP EALS BEFORE THE FIRST APPELLATE AUTHORITY (FAA).THE FAA CALLED FOR REMAND REPORTS BEFORE DISP OSING THE APPEALS.IN ONE OF THE REMAND REPORTS,FOR A.Y.2002-03,2003-04,THE JOINT COMMISSIO NER RANGE-19(1),INFORMED THE FAA,VIDE HIS LETTER DATED 9/9/2009,THAT ALL THE ASSESSMENTS WERE REOPENED U/S.148 FOR SIX YEARS AND THAT THERE WAS NOTHING ON RECORD TO AVER THAT PROCEEDINGS U/S. 153A HAD BEEN INITIATED. 5 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI 4. IN THIS BACKGROUND,WE ARE TAKING UP THE JURISDICTIO NAL ISSUE.BEFORE US,THE AUTHORISED REPRESENT -ATIVE(AR)CONTENDED THAT IF THE ASSESSMENT WERE COM PLETED U/S.147-148 OF THE ACT PRIOR APPROVAL OF THE CIT/CCIT HAD TO BE TAKEN FOR ISSUING NOTICES ,THAT THERE WAS NO EVIDENCE THAT SUCH PERMISSION WAS REQUESTED FOR OR WAS GRANTED,THAT IF THERE WAS A SEARCH THE NOTICES SHOULD HAVE BEEN ISSUES AS PER THE PROVISIONS OF SECTION 153A O F THE ACT,THAT NOTICES ISSUED UNDER A PARTICULAR SECTION CANNOT BE DEEMED TO HAVE BEEN ISSUE UNDER A NOTHER SECTION,THAT SECTION 292 B COULD NOT CURE THE DEFECTS OF JURISDICTION.HE RELIED UPON THE CASES OF ABHAY KUMAR SHROFF(290 ITR114), RANCHODAS KARSONDA(36ITR569)SHEILA JAGGI(84ITR50)RA JENDRA SHAH (247 ITR 772),V.RAMAIAH (356 ITR 646),SUNROLLING MILLS.P.LTD.(160ITR412),RA MBALLABH GUPTA(288 ITR 347).HE REFERRED TO THE REMAND REPORT OF THE JCIT,THE APPLICATION MA DE THE ASSESSEE TO THE AO UNDER THE RTI ACT AND THE REPLY TO IT.DEPARTMENTAL REPRESENTATIVE(DR) ARGUED THAT NOTICES ISSUED UNDER SECTION 148 OF THE ACT SHOULD BE TREATED AS NOTICES ISSUED U/S. 153A,THAT THE MISTAKE COMMITTED BY THE AO IN NOT MENTIONING THE SECTION WAS CURABLE AS PER THE P ROVISIONS OF SECTION 292B OF THE ACT. 4. CONSIDERING THE ABVOR,WE ARE OF THE OPINION THAT ON E OF THE ISSUES FOR DETERMINATION IS WHETHER THE PRESENT PROCEEDINGS WHICH WERE TAKEN IN PURSUAN CE OF NOTICE U/S.148 DATED 20.02.2006 FOR AY.S.1999-2000,2000-01,2001-02 &2004-05 CAN BE TREA TED AS PROCEEDINGS U/S. 153A OF THE ACT AND ACCORDINGLY CAN BE RECTIFIED U/S. 292B OF THE A CT,AS STATED IN THE CROSS OBJECTIONS OF THE AO FILED ON 01.12.2008.SECOND ISSUE IS WHETHER THE RE- ASSESSMENT PROCEEDINGS INITIATED BY THE AO WERE VALID ? ONE OF THE QUESTIONS FOR THE AY. 2005-05 IS AGAIN T HE VALIDITY OF THE ASSESSMENT.IN THAT MATTER THE AO HAD ISSUED THE NOTICE U/S.147 DURING THE PENDENC Y OF THE ASSESSMENT PROCEEDINGS,THOUGH A NOTICE U/S.143(2) OF THE ACT WAS ISSUED BY THE AO I N PURSUANCE OF THE VALID RETURN FILED BY THE ASSESSEE ON 30/10/2004. 4.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD.WE FIND THAT THE AO,VIDE HIS CROSS OBJECTIONS DATED 01.12.2012,H AS ARGUED THAT THE ASSESSMENTS COMPLETED U/S.148 SHOULD BE TREATED AS ASSESSMENT FINALISED U /S.153A OF THE ACT.IT CLEARLY INDICATES THAT AN ACTION 132/132A WAS TAKEN IN THE CASE UNDER CONSIDE RATION.BUT,IN RESPONSE TO A QUERY RAISED UNDER RTI ACT ON 7/12/2012 BY THE ASSESSEE,THE AO H AD STATED THAT NO SEARCH WAS CONDUCTED IN THE CASE UNDER APPEAL AND THAT NO PANCHANAMA WAS DR AWN.THUS,TWO DIAGONALLY OPPOSITE STANDS HAVE BEEN TAKEN BY THE AO.IT IS BEYOND OUR COMPREHE NSION AS TO HOW THE SAME OFFICER CAN SAY THAT SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESS EE IN ONE BREATH AND IN ANOTHER HE DENIES THE SAME FACT.FROM THE DOCUMENTARY EVIDENCES AVAILABLE ON THE FILES IT IS CLEAR THAT AN ACTION U/S.132A OF THE ACT WAS CARRIED OUT BY THE INVESTIGATION WIN G OF THE DEPARTMENT IN THE CASE OF THE ASSESSEE AND A PANCHNAMA WAS ALSO DRAWN.THEREFORE,THE STANDS TAKEN BY THE JCIT AND THE AO IN THE FORWARDING LETTER OF THE REMAND REPORT AND IN FURNI SHING REPLY TO THE ASSESSEE WITH REGARD TO RTI ACT RESPECTIVELY ARE FACTUALLY INCORRECT. 4.2. ONCE,IT IS ESTABLISHED THAT IT IS A SEARCH-CASE,THE N IT HAS TO BE HELD THAT IT WOULD TO BE GOVERNED BY THE PROVISIONS OF SECTION 153A OF THE ACT,AS THE ACTION U/S.132A WAS TAKEN AFTER 31.05.2003. EXPLAINING THE SCOPE OF THE SECTION 143A,THE HONBL E JHARKHAND HIGH COURT HAS,IN THE CASE OF ABHAY KUMAR SHROFF (290ITR114),HELD AS UNDER: FROM A BARE READING OF THE PROVISIONS OF SECTIONS 153A, 153B AND 153C OF THE INCOME-TAX ACT, 1961 AND THE DEPARTMENTAL CIRCULAR NO. 7 DATED SEPT EMBER 5, 2003, IT IS MANIFESTLY CLEAR THAT AFTER MAY 31 ,2003,THE EARLIER PROVISION OF BLOCK A SSESSMENT IN THE CASE OF SEARCH INITIATED AGAINST THE ASSESSEE, SHALL NOT APPLY. INSTEAD, THE PROVISI ON THAT THERE SHALL BE SINGLE ASSESSMENT ON UNDISCLOSED INCOME COMPRISING PREVIOUS YEARS RELATI NG TO SIX ASSESSMENT YEARS PRECEDING THAT IN WHICH THE SEARCH WAS CONDUCTED, SHALL APPLY. IT FUR THER PROVIDES THAT THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT 6 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL ATING TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED UNDER SECTION 132 OR REQUISITION WAS MADE UNDER SECTION 132A OF THE ACT. THE SECOND PROVISO TO SECTION 153A MAKES IT CLEAR THAT ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR REQUISITION UNDE R SECTION 132A SHALL ABATE. IN OTHER WORDS, IF ON THE DATE OF INITIATION OF SEARCH OR REQUISITION UND ER SECTION 132 OR SECTION 132A ANY ASSESSMENT OR REASSESSMENT PROCEEDING IS INITIATED RELATING TO AN Y ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS, IT SHALL STAND ABATED AND THE ASS ESSING AUTHORITY CANNOT AND SHALL NOT PROCEED WITH SUCH PENDING ASSESSMENT AFTER INITIATION OF SE ARCH OR REQUISITION. THE WORD ABATEMENT MEANS THE ACT OF ELIMINATING OR NULLIFYING OR SUSPE NSION OR DEFEAT OF A PENDING ACTION. HONBLE DELHI HIGH COURT IN THE CASE OF SARAYA INDU STRIES LTD.HAS (306ITR189)INCORPORATED SOME MORE PRINCIPLES RELATED WITH THE SECTION IN FOLLOWI NG MANNER: THE OPENING PORTION OF SECTION 153A OF THE INCOME-T AX ACT, 1961, MAKES IT CLEAR THAT IT APPLIES TO A PERSON IN RESPECT OF WHOM A SEARCH IS INITIATED UND ER SECTION 132 OF THE ACT, OR WHOSE BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISIT IONED UNDER SECTION 132A AFTER MAY 31, 2003. SECTION 153C OF THE ACT IS WITH REFERENCE TO A PERS ON IN RESPECT OF WHOM ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS OR B OOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG. THE PERSONS MENTIONED IN SECT ION 153A OF THE ACT ARE SPECIFICALLY EXCLUDED FROM SECTION 153C OF THE ACT. THE PROCEDURE THAT IS SOUGHT TO BE FOLLOWED IN RESPECT OF THESE TWO CATEGORIES OF PERSONS HAS BEEN PROVIDED FOR IN SECT IONS 153A AND 153C OF THE ACT. THAT THE PROCEDURE IN RESPECT OF BOTH OF THEM OVERLAPS OR IS SIMILAR IS HARDLY OF ANY CONSEQUENCE, SINCE BOTH HAVE TO BE TREATED IN ACCORDANCE WITH THE PRIN CIPLES OF NATURAL JUSTICE. IT IS CLEARLY MENTIONED IN THE SUBSTANTIVE PORTION OF SECTION 153C(1) OF TH E ACT THAT THE ASSESSING OFFICER SHALL PROCEED AGAINST A PERSON COVERED BY THE SECTION BY ISSUING A NOTICE TO HIM FOR THE PURPOSE OF ASSESSING OR REASSESSING HIS INCOME. THE VERY FACT THAT NOTICE I S REQUIRED TO BE ISSUED CLEARLY POSTULATES THAT THE PRINCIPLES OF NATURAL JUSTICE ARE INCORPORATED IN T HE PROVISION. THERE IS NOTHING ARBITRARY IN THE PROCEDURE ADOPTED. ESSENTIALLY BOTH THE CATEGORIES OF PERSONS ARE THE SAME INASMUCH AS THEIR BOOKS OF ACCOUNT, ASSETS, DOCUMENTS, ETC., ARE SEIZ ED OR REQUISITIONED, THOUGH FROM DIFFERENT LOCATIONS. MOREOVER, THE SEIZURE OR REQUISITION MUS T BE OF SUCH A CHARACTER AS TO PERSUADE THE ASSESSING OFFICER TO EVEN REOPEN CLOSED ASSESSMENTS .IN THIS SENSE,THERE IS NO HOSTILE DISCRIMINATION BETWEEN THE TWO CATEGORIES OF PERSONS. FROM THE ABOVE IT IS CLEAR THAT FOR THE ACTIONS TAK EN W.E.F.01.06.2003,ASSESSMENTS WILL HAVE TO BE COMPLETED AS PER THE SCHEME OF SECTION 153A.THE SEC TION PROVIDES FOR ISSUING OF NOTICE FOR ASSESSING OR REASSESSING THE INCOME OF AN ASSESSEE. FROM THE RECORDS AND THE GROUNDS OF CO.S.IT CLEAR THAT THOUGH IN THE CASES UNDER CONSIDERATION NOTICES HAD TO BE ISSUED U/S.153 A OF THE ACT,BUT WERE NOT ISSUED.THE AO HAD ISSUED NOTICES U/.148 OF THE ACT.ISSUE OF NOTICE U/S.153A AND 148 HAS BEEN DECIDED BY THE HONBLE M P HIGH COURT,IN THE C ASE OF RAMBALLABH GUPTA (288ITR347),AS UNDER: IN ORDER TO DECIDE THE LEGALITY AND VALIDITY OF TH E NOTICE ISSUED UNDER SECTION 148 OF THE INCOME- TAX ACT, 1961, IT IS NECESSARY TO SEE AS TO WHETHER THE CONDITIONS PRECEDENT PROVIDED IN SECTION 148 ARE SATISFIED OR NOT. ONCE THE CONDITIONS PRESCRIBE D UNDER SECTION 148 ARE FOUND PRESENT IN THE NOTICE ISSUED, IN THAT EVENT, THE NOTICE HAS TO BE UPHELD HAVING BEEN ISSUED IN CONFORMITY WITH THE REQUIREMENT OF SECTION 148. THE ONLY FETTER PUT ON THE POWERS OF THE ASSESSING OFFICER IN TAKING RECOURSE TO SECTION 148 IS THAT IT CANNOT BE ISSUED IN RELATION TO THOSE SIX ASSESSMENT YEARS WHICH ARE DEFINED IN SECTION 153A.(EMPHASIS SUPPLIED) IN ALL OTHER CASES AND FOR ALL OTHER ASSESSMENT YEARS SECTION 148 CAN ALWAYS BE RESORTED TO SUBJECT OF COURSE TO THE CONDITION THAT IT MUST SATISFY THE REQUIREMENT SPECIFIED IN SECTION 148. 4.3. NOW,WE WOULD TAKE UP THE ISSUE AS TO WHETHER THE PR OVISIONS OF SECTION 292 B CAN BE INVOKED FOR TREATING THE RE-ASSESSMENT PROCEEDINGS AS PROCE EDINGS U/S.153A OF THE ACT,AS ARGUED BY THE REVENUE.SECTION 292B OF THE ACT,WHICH SAYS THAT NO RETURN OF INCOME FURNISHED UNDER THE ACT SHALL BE INVALID MERELY BY REASON OF ANY MISTAKE,DE FECT OR OMISSION IN SUCH RETURN OF INCOME, IF IT, IN SUBSTANCE AND EFFECT,IS IN CONFORMITY WITH OR AC CORDING TO THE INTENT AND PURPOSE OF THE ACT, 7 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI WAS INTRODUCED INTO THE ACT WITH EFFECT FROM 01.10. 1975.IN THE STATEMENT OF OBJECTS AND REASONS, PUBLISHED IN THE GAZETTE DATED 09.05 1973,FOR BILL NO.34 OF 1973-89 ITR(ST.)33),IT IS STATED, AT CLAUSE 80, REFERRING TO SECTION 292B,THAT IT SEEKS TO PROVIDE AGAINST PURELY 'TECHNICAL OBJECTIONS' WITHOUT SUBSTANCE COMING IN THE WAY OF THE VALIDITY OF ASSESSMENT PROCEEDINGS, ETC.IN THE DEPART - MENTAL CIRCULAR NO. 179DATED 30.09. 1975-102ITR(ST. )28), EXPLAINING THE SCOPE OF SECTION 292B, IT IS STATED THAT THE PROVISION HAS BEEN MADE TO PR OVIDE AGAINST PURELY TECHNICAL OBJECTIONS WITH - OUT SUBSTANCE COMING IN THE WAY OF THE VALIDITY OF ASSESSMENT PROCEEDINGS, ETC.COURTS HAVE HELD THAT IT WAS NOT RETROSPECTIVE.OVER THE YEARS THE LA W REGARDING THE PROVISIONS OF SECTION 292 B HAVE EVOLVED AND IT HAS TAKEN A DEFINITE SHAPE.HERE,WE W OULD LIKE TO MENTION CERTAIN PRINCIPLES GOVERN -ING THE SECTION 292B AND SAME CAN BE SUMMARISED AS UNDER: I.) IF AN ASSESSEE DOES NOT FILE HIS RETURN OF INCOME I N THE PRESCRIBED FORM AS ENVISAGED BY THE PROVISIONS OF THE ACT,THE RETURN FILED BY HIM HAS T O BE IGNORED AS NOT FILING OF RETURN IS NOT CURABLE BY THE PROVISIONS OF SECTION 292B OF THE ACT. II.) AN IRREGULARITY IN NOT SCORING OUT PORTIONS OF THE FORM OF WARRANT OF SEARCH DOES NOT AFFECT THE EXERCISE OF THEIR POWER BY THE AUTHORITIES.IN ANY C ASE,SUCH DEFECT WOULD BE CURED BY SECTION 292B. III.) THE SIGNING OF A NOTICE ISSUED UNDER S.271(1)(A) OF THE ACT,FOR SHOWING CAUSE WHY PENALTY SHOULD NOT BE IMPOSED ON THE ASSESSEE FOR DELAY IN FILING RETURNS,IS NOT A MERE INCONSEQUENTIAL TECHNICALITY.IT IS A REQUIREMENT OF THE PROVISIONS OF O.5, R. 1(3) OF THE CIVIL PROCEDURE CODE, 1908, WHICH ARE APPLICABLE BY VIRTUE OF THE PROVISIONS OF SECTION 282 OF THE ACT.SECTION 282 OF THE ACT PROVIDES THAT A NOTICE UNDER THE ACT MAY BE SERVED ON THE PERSON NAMED THEREIN AS IF IT WERE A SUMMONS ISSUED BY A COURT UNDER THE CPC,1908.SUB-RU LE (3) OF R. 1 OF O. 5 OF THE CPC PROVIDES THAT EVERY SUMMONS SHALL BE SIGNED BY THE JUDGE OR SUCH OFFICER AS HE APPOINTS.THEREFORE, IN VIEW OF THIS PROVISION, THE NOTICE TO SHOW CAUSE WHY PEN ALTY SHOULD NOT BE LEVIED BY THE ITO SHOULD BE SIGNED BY THE AO AND THE OMISSION TO DO SO INVALIDA TES THE NOTICE AND IN SUCH A SITUATION SECTION 292 B WILL NOT COME TO RESCUE OF THE AO. IV.) SECTION 292B MIGHT APPLY TO A CASE WHERE SERVICE OF NOTICE HAD ALREADY BEEN EFFECTED AND THERE IS ONLY A TECHNICAL MISTAKE IN THE NOTICE.BUT ,WHERE NO NOTICE HAD BEEN SERVED,THE SECTION WOULD NOT COME TO THE HELP OF THE DEPARTMENT E.G.IF A NOTICE IS NOT ISSUED TO A MINOR OR TO HIS GUARDIAN OR THE KARTA OF THE HUF AND SUCH NOTICE AF FECTS THE RIGHTS OF THE MINOR ADVERSELY,THE PROCEEDINGS INITIATED IN PURSUANCE OF THAT NOTICE C ANNOT BE CURED BY THE PROVISIONS OF SECTION 292B OF THE ACT. V.) WHERE AN ASSESSMENT ORDER CONTAINING COMPUTATION OF INCOME IS SIGNED BY THE AO,BUT THE COMPUTATION OF TAX MADE ON SEPARATE SHEET OF PAPER IS NOT SIGNED BY HIM,THE ASSESSMENT CANNOT BE HELD INVALID.IN SUCH CASES,COURTS ARE OF THE VIEWS THAT IT IS NOT A CASE OF NON-COMPLIANCE WITH MANDATORY PROVISION.SUCH AN ASSESSMENT CANNOT BE HE LD INVALID BECAUSE OF THE EXISTING PROVISIONS OF SECTION 292B OF THE ACT. VI.) A COMPOSITE NOTICE ASKING AN ASSESSEE TO PAY BALANC E ADVANCE TAX AND STATING THAT ON FAILURE TO PAY ASSESSEE TO SHOW CAUSE WHY PENALTY SHOULD NO T BE LEVIED IT HAS BEEN HELD VALIDHAVING REGARD TO THE PURPORT OF THE NOTICE AND THE PROVISI ONS OF SECTION 292B. VII.) CONVERTING THE PROCEEDING UNDER SECTION 147(B) INTO A PROCEEDING UNDER SECTION 147(A) OF THE ACT,IS INVALID.IT IS SAID THAT SECTION 292B DOES NO T EMPOWER THE AO TO TREAT A PROCEEDING TAKEN UNDER ONE SECTION AS A PROCEEDING UNDER ANOTHER SE CTION,THAT IT IS NOT A MERE TECHNICALITY, BUT, WAS A QUESTION OF JURISDICTION. VIII.) IN CASE OF AN ASSOCIATION OF PERSONS IF A NOTICE FO R NOT FURNISHING RETURN OF INCOME IS ISSUED TO AN INDIVIDUAL WITHOUT SPECIFYING WHETHER IT WAS ISSUED TO PRINCIPAL OFFICER OR MEMBER OF AOP, THEN THE AO IS NOT COMPETENT TO RE-ASSESS THE INCOM E OF THE AOP CONSISTING OF THAT PERSON AND OTHERS.DEFECT IN ISSUE OF NOTICE IN SUCH A CASE COU LD NOT BE CURED BY RELIANCE ON SECTION 292B OF THE ACT. IX.) IN CASE OF A DECEASED ASSESSEE IF THE LEGAL REPRESE NTATIVES ARE IMPLEADED AND HEARD AND AFTER THAT IF THE ASSESSMENT ORDER IS PASSED IN THE NAME OF THE DECEASED INSTEAD OF THE LEGAL HEIRS, THE 8 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI ORDER HAS TO BE TAKEN AS A CLERICAL MISTAKE IN LI GHT OF THE PROVISIONS OF THE SECTION UNDER CONSIDE -RATION. X.) THE TRIBUNAL HAS NO POWER TO ENHANCE THE ASSESSMENT ,BUT THAT DOES NOT MEAN THAT AN ORDER WHICH IS SET ASIDE BY THE FIRST APPELLATE AUTHORITY CANNOT BE RESTORED.IN CASE OF ANY MISTAKE OR ERROR, THE TRIBUNAL HAS THE POWER TO HAVE RECOURSE TO SECTION 292B OF THE ACT.(224ITR57). XI.) THE PROVISION IN SECTION 139(9)OVERRIDES THE OTHER PROVISIONS OF THE ACT INCLUDING SECTION 292B OF THE ACT. XII.) ACCORDING TO SECTION 140 OF THE ACT, EVERY RETURN H AS TO BE SIGNED AND VERIFIED.THE WORD 'SHALL' HAS BEEN USED IN THE SECTION WHICH SHOWS TH AT IT IS MANDATORY THAT EVERY RETURN SHOULD BE SIGNED AND VERIFIED AND IF IT IS NOT SIGNED AND VER IFIED, THEN IT IS IN BREACH OF THE PROVISIONS OF SECTION 140 OF THE ACT.THEREFORE,THIS CANNOT BE A D EFECT WHICH CAN BE CURED AS PER THE PROVISIONS OF SECTION 292B OF THE ACT AND ANY RETURN FILED WIT HOUT SIGNATURE AND VERIFICATION OF THE ASSESSEE WILL NOT BE TREATED AS A VALID RETURN. XIII.) TIME BARRING ASSESSMENT DOES NOT COME WITHIN THE PU RVIEW OF MISTAKE,DEFECT OR OMISSION REFERRED IN SECTION 292B OF THE ACT.IN PEERU LAL,MO HAN LAL (257ITR198),HONBLE RAJASTHAN HIGH COURT HELD THAT THE EXPRESSION MISTAKE, DEFECT OR OMISSION CANNOT BE UNDERSTOOD AS ONE OF PROCEDURE,SO AS TO OVERRIDE THE LIMITATION PRESCRIB ED BY LAW. XIV.) CANCELLING THE REGISTRATION OF THE FIRM ON THE GROU ND OF ERROR IN THE ALLOCATION OF SHARES AMONG THE PARTNERS,WITHOUT ISSUING NOTICE UNDER SEC TION 158R.W.S.187 AND 67 OF THE ACT PROPOSING TO CHANGE THE SHARE ALLOCATION AMONG THE PARTNERS,I NVOLVES QUESTION OF JURISDICTION AND THEREFORE DIRECTION GIVEN TO AO TO MODIFY THE ORDER U/S.158 C ANNOT BE SUSTAINED BY RELYING ON SECTION 292B. XV.) PROVISIONS RELATING TO ISSUE OF NOTICE FOR BLOCK PE RIOD ARE CONSIDERED PROCEDURAL AND NOT SUBSTANTIVE IN NATURE.THEREFORE MENTION OF BLOCK PE RIOD WRONGLY IN NOTICE CANNOT RENDER ENTIRE ASSESSMENT A NULLITY AS THE DEFECTS ARE CURABLE UND ER SECTION 292B.SECONDLY,IN BLOCK ASSESSMENT IF A NOTICE IS ISSUED UNDER SECTION 158BC R.W.S.158BD OF THE ACT AND THE AO FAILS TO MENTION SEC. 158BD IN THE NOTICE,IT IS NOT CONSIDERED FATAL.IT I S SAID THAT THE DEFECT IN MENTIONING A PARTICULAR SECTION IS CURABLE UNDER SECTION 292B AND CONSEQUEN T BLOCK ASSESSMENT ORDER IS CONSIDERED WITHIN JURISDICTION. XVI.) AFTER INSERTION OF SECTION 292 B OF THE ACT,AN APPE AL CANNOT BE DISMISSED DUE TO DEFECT IN MEMORANDUM,BECAUSE IT IS ONLY A TECHNICAL DEFECT AN D CAN BE CURED. XVII.) PENALTY PROCEEDINGS CANNOT BE HELD INVALID BECAUSE THE AO HAD NOT STRUCK OFF THE COLUMN FOR WHICH THE ASSESSEE WAS NOT REQUIRED TO GIVE REPLY. XVIII.) IF A RETURN OF COMPANY IS NOT SIGNED BY MANAGING DI RECTOR BUT BY A PERSON AUTHORISED BY BOARD RESOLUTION THE DEFECT IN SIGNING THE RETURN I S CURABLE UNDER SECTION 292B. XIX.) UNDER SECTION 151 OF THE ACT,IT IS ONLY THE JOINT C OMMISSIONER OR ADDITIONAL COMMISSIONER, WHO COULD GRANT THE APPROVAL FOR ISSUE OF NOTICE U/ S.148 AND IN SUCH CASES IF THE APPROVAL IS GRANTED BY THE COMMISSIONER IT IS NOT AN IRREGULARI TY THAT IS CURABLE BY SECTION 292B.COURTS HAVE HELD THAT SUCH NOTICES ARE INVALID. XX.) GENERAL MISTAKES IN FILING RETURN ARE PROTECTED BY THE SECTION 292 B OF THE ACT E.G.IF FOUR UNITS OF A COMPANY FILE SEPARATE RETURNS AT SAME TIME DIS CLOSING LOSSES AND SUBSEQUENTLY A CONSOLIDATED RETURN INCORPORATING LOSS OF ALL FOUR UNITS CONTAIN ING SAME INFORMATION IS FILED,THE ORIGINAL RETURNS REMAIN VALID AND TECHNICAL MISTAKE STANDS REMOVED O N FILING OF REVISED RETURN.IN SUCH A MATTER REVISED RETURN WOULD RELATE BACK TO DATE OF FILING OF ORIGINAL RETURNS. FROM THE ABOVE,IT CLEAR THAT IF ANY MINOR DEFECT IS THERE WHICH DOES NOT MILITATE AGAINST THE INTENT AND PURPOSE OF THE ACT THEN SUCH DEFECT CAN BE CURE D U/S.292 B OF THE ACT,BUT THE SECTION DOES NOT COME TO THE ASSISTANCE OF THE REVENUE,WHERE THERE I S A FUNDAMENTAL INFIRMITY IN THE ASSESSMENT.IT CANNOT CONFER JURISDICTION,WHERE JURISDICTION HAS N OT BEEN PROPERLY ASSUMED.IN THE MATTER OF NORTON MOTORS(275ITR595),THE HONBLE P&H HIGH COURT HAS HELD AS UNDER: TO PUT IT DIFFERENTLY,SECTION 292B CAN BE RELIED U PON FOR RESISTING A CHALLENGE TO THE NOTICE, 9 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI ETC.,ONLY IF THERE IS A TECHNICAL DEFECT OR OMISSIO N IN IT. HOWEVER, THERE IS NOTHING IN THE PLAIN LANGUAGE OF THAT SECTION FROM WHICH IT CAN BE INFER RED THAT THE SAME CAN BE RELIED UPON FOR CURING A JURISDICTIONAL DEFECT IN THE ASSESSMENT NOTICE, S UMMONS OR OTHER PROCEEDING.IN OTHER WORDS,IF THE NOTICE,SUMMONS OR OTHER PROCEEDING TAKEN BY AN AUTH ORITY SUFFERS FROM AN INHERENT LACUNA AFFECTING HIS /ITS JURISDICTION, THE SAME CANNOT BE CURED BY HAVING RESORT TO SECTION 292B. IF THE FACTS OF THE CASE UNDER APPEAL ARE CONSIDERE D IN LIGHT OF THE ABOVE DISCUSSION,IT BECOMES CLEAR THAT THE PROVISIONS OF SECTION 292B ARE NOT A PPLICABLE.IN THE CROSS OBJECTIONS THE AO WANTS US TO TREAT US THE ASSESSMENT COMPLETED U/S.148 AS ASSESSMENT FINALISED U/S.153A OF THE ACT.IN OUR OPINION,BOTH THE SECTIONS DEAL WITH DIFFERENT SITUA TIONS AND NOTICE ISSUED UNDER ONE SECTION CANNOT BE TREATED NOTICE UNDER ANOTHER SECTION NOR CAN BE ASSESSMENT MADE UNDER A PARTICULAR SECTION CAN BE TREATED AS FINALISED UNDER ANOTHER SECTION.SECTI ON 147-148 DEAL WITH RE-ASSESSING OF INCOME FOR A PARTICULAR AY.THAT ESCAPES TAXATION BECAUSE OF TH E FAILURE OF THE ASSESSEE OR OTHRERWISE.SECTION 153A DEALS WITH THE MATTERS WHERE ACTION HAS BEEN T AKEN U/S.132 OR 132A OF THE ACT.EACH AND EVERY SECTION OF THE ACT HAS BEEN INCLUDED IN THE S TATUE WITH A SPECIFIC INTENTION AND PURPOSE.THE LEGISLATURE IN ITS WISDOM HAS INTRODUCED VARIOUS SE CTION TO REGULATE THE TAX COLLECTION.SO,TO ASSUME THAT ONE SECTION IS RE-PLACABLE BY ANOTHER I S NOT A LOGICAL OR LEGAL CONCLUSION.EACH SECTION, EACH PHRASE AND EACH WORD OF THE ACT HAS ITS OWN PL ACE AND IMPORTANCE.IF AN AO COMMITS A MISTAKE WHILE PASSING ASSESSMENT ORDERS,IT CANNOT B E CURED BY RELYING UPON ANY OTHER SECTION, BECAUSE SUCH A MISTAKE IS NOT A CLERICAL MISTAKE-IT RELATES TO JURISDICTION.THE MISTAKE/DEFECT OR OMISSIONIN NOTICES ISSUED BY THE AO U/S.148 INSTEA D OF SECTION 153A OF THE ACT IS NOT IN CONFORMITY WITH /ACCORDING TO THE INTENT AND PURPO SE OF THE ACT.JURISDICTIONAL ISSUES CANNOT FALL IN THE CATEGORY OF CLERICAL MISTAKES-THEY GO THE RO OTS OF THE ASSESSMENT.IN THESE CIRCUMSTANCES,WE ARE OF THE OPINION THAT ORDERS PASSED BY THE AO FO R THE AY.1999-2000,2001-01,2001-02 ARE NOT VALID. AS FAR AS THE ASSESSMENT OF AY.2004-05 IS CONCERNED ,IT IS FOUND THAT THE AO HAD ISSUED NOTICE U/S.143(2) OF THE ACT AND BEFORE COMPLETING THE ORI GINAL ASSESSMENT HAD ISSUE A NOTICE U/S.148 OF THE ACT.WE CANNOT COMPREHEND AS HOW CAN AN AO ISSU E A NOTICE FOR REASSESSING ESCAPED INCOME DURING THE PENDENCY OF THE ASSESSMENT ITSELF.THE CH RONOLOGICAL EVENTS DISCUSSED IN EARLIER CLEARLY SHOW THAT THE AO HAD ISSUED NOTICE U/S.148 FOR THAT YEAR ON 20.02.2006 AND THE ASSESSMENT WAS COMPLETED ON 29.12.2006.BESIDES HE HAS ISSUED NOTIC E U/S.143(2)ON 17.2.2005.CONSIDERING THESE FACTS,WE ARE OF THE OPINION THAT THE ASSESSMENT ORD ER FOR THE AY.2004-05 WAS INVALID. ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE ARE TO BE ALLOWED FOR ALL THE YEARS AND THE CROSS OBJECTIONS RAISED BY THE AO ARE REJECTED. ITA/2968/MUM/2011-AY.2004-2005: 5. WE HAVE ALREADY HELD THAT THE ASSESSMENT ORDER PASS ED BY THE AO FOR THE AY.2004-05 IS NOT VALID.AS THE QUANTUM ORDER ITSELFSELF IS INVALID,SO ,THE PENALTY ORDER PASSED IN PURSUANCE OF IT WOULD NOT SURVIVE.EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. AS A RESULT,APPEALS FILED BY THE ASSESSEE STANDS AL LOWED AND THE CO.S.OF THE AO STAND DISMISSED. >0? >0? >0? >0? /0 /0 /0 /0 2 @ 2 @ 2 @ 2 @ A A A A 'B0 'B0 'B0 'B0 2 22 2 '0 '0 '0 '0 C CC C D D D D /0 /0 /0 /0 # *+!# 'E F '0# C # *+!# 'E F '0# C # *+!# 'E F '0# C # *+!# 'E F '0# C. . . . ORDER PRONOUNCED IN THE OPEN COURT ON 9TH,JANUARY,2015 . &#= &#= &#= &#= 2 22 2 3. 3. 3. 3. # ## # $ $ $ $ A AA A F& F& F& F& 09.01. 201 5 2 22 2 < << < G GG G SD/- SD/- ( . / D.MANMOHAN) ( '#$% '#$% '#$% '#$% / RAJENDRA) ! / VICE PRESIDENT # # # # &' &' &' &' /ACCOUNTANT MEMBER / MUMBAI, F& /DATE: 09.01.2015. SK &#= &#= &#= &#= 2 22 2 *0H *0H *0H *0H I#H.0 I#H.0 I#H.0 I#H.0 / COPY OF THE ORDER FORWARDED TO : 10 ITA NO.1485/MUM/2008 VASHDEV G. ADNANI 1. ASSESSEE / () 2. RESPONDENT / *+() 3. THE CONCERNED CIT(A)/ J K , 4. THE CONCERNED CIT / J K 5. DR F BENCH, ITAT, MUMBAI / H@< *0 Q QQ Q , . . $ . 6. GUARD FILE/ < > +H0 +H0 +H0 +H0 *0 *0*0 *0 //TRUE COPY// &#= / BY ORDER, / ' DY./ASST. REGISTRAR , /ITAT, MUMBAI