Machale Govindrao Namdeorao, Beed V. ITO, Ward 2(4), Beed

ITA 1982/PUN/2012

• Counselvise Citation: 198224514 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Salary income; Period of limitation; Fair market value; Procedural lapse; Block assessment; Time period of passing order; Reassessment proceedings
• Section: 50C; 147; 2; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1982/PN/2012 (ASSTT.YEAR : 2008-09) MACHALE GOVINDRAO NAMDEORAO, VIDYANAGAR (EAST), BARSHI ROAD, BEED- 431122. .. APPELLANT PAN NO. ABXPM4697B VS. ITO, WARD-2(4), BEED .. RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SRI S.P. WALIMBE DATE OF HEARING : 03-01-2014 DATE OF PRONOUNCEMENT : 08-01-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDERS DATED 28-08-2012 OF THE CIT(A), AURANGABAD RELATING TO AS SESSMENT YEAR 2008- 09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY, HOUSE PROPERTY AND BUSI NESS INCOME FROM PRINTING PRESS. IN THIS CASE, NOTICE U/S.148 WAS I SSUED BY THE ASSESSING OFFICER ON 12-3-2009. IN RESPONSE TO THE SAID NOTI CE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 06-07-2009 DECLARING TOTAL INCO ME AT RS.66,830/- AND AGRICULTURAL INCOME OF RS.40,000/-. THE REASON FOR ISSUE OF NOTICE IS THAT THE ASSESSEE HAS PURCHASED A PLOT OF LAND FOR RS. 8 LAK HS ON 27-08-2007 AND SOLD THE SAID PLOT OF LAND ON 17-01-2008 FOR A CONS IDERATION OF RS. 9 LAKHS THE VALUE OF THE SAID PROPERTY AS PER PROVISIONS OF SECTION 50C WAS 2 RS.21,95,000/-. THUS, THE INCOME ON ACCOUNT OF SHO RT TERM CAPITAL GAIN HAS ESCAPED ASSESSMENT. THE ASSESSEE FILED RETURN IN R ESPONSE TO NOTICE U/S.148 DECLARING NET LOSS OF RS.53.400/- FROM THE SAID TRA NSACTION. SINCE THE ASSESSING OFFICER FELT THAT NOTICE ISSUED U/S.148 I S PREMATURE HE DROPPED THE PROCEEDINGS U/S.148 VIDE ORDER DATED 03-11-2009 AND INITIATED FRESH PROCEEDINGS BY ISSUE OF NOTICE U/S.148 DATED 06-11- 2009. 2.1 IN RESPONSE TO NOTICE U/S.142(1), IT WAS SUBMIT TED THAT THE ASSESSEE HAS PURCHASED ONE COMMERCIAL PLOT FOR HIS OWN PRINT ING PRESS. SINCE THE AFORESAID PLOT TRANSACTION IS PURELY COMMERCIAL TRA NSACTION AND IT IS EFFECTED ONLY FOR BUSINESS PURPOSES, THE QUESTION OF APPLICA TION OF PROVISIONS OF SECTION 50C TO THE ABOVE TRANSACTION DOES NOT ARISE AT ALL. HOWEVER, THE AO DID NOT ACCEPT THE SUBMISSIONS MADE BY THE ASSESSEE AND HELD THAT IT IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(42A) OF THE I.T. ACT. SINCE THE VALUE ASSESSED BY STAMP DUTY VALUATION AUTHORIT Y FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF THE SAID PLOT S OLD IS RS.21,95,000/-, THE ASSESSING OFFICER, AFTER DEDUCTING THE COST OF ACQU ISITION INCLUDING EXPENSES INCURRED ON PURCHASE OF PLOT AT RS.9,53,40 0/- BROUGHT TO TAX SHORT TERM CAPITAL GAIN OF RS.12,41,600/-. 3. BEFORE CIT(A) THE ASSESSEE CHALLENGED THE VALIDI TY OF THE RE- ASSESSMENT PROCEEDINGS ON THE GROUND THAT NOTICE U/ S.143(2) HAS NOT BEEN ISSUED TO THE ASSESSEE AFTER INITIATING PROCEEDINGS U/S.148 DATED 06-11-2009. THE ASSESSEE HAS ALSO CHALLENGED THE INVOKING OF PR OVISIONS OF SECTION 50C OF THE I.T. ACT BY THE ASSESSING OFFICER ON THE GRO UND THAT THE TRANSACTION OF SALE OF PLOT OF LAND HAS RESULTED INTO BUSINESS PROFIT. IT WAS ARGUED THAT THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE TO THE ASSESSEE. 3 3.1 HOWEVER, THE LD.CIT(A) WAS NOT CONVINCED WITH T HE ARGUMENTS ADVANCED BY THE ASSESSEE. SO FAR AS THE ARGUMENT O F THE ASSESSEE THAT THE ASSESSMENT ORDER IS VOID AB-INITIO SINCE NO NOTICE U/S.143(2) HAS BEEN ISSUED IS CONCERNED, THE LD.CIT(A) REJECTED THE SAME ON TH E GROUND THAT THE ASSESSEE HAS NOT OBJECTED DURING THE RE-ASSESSMENT PROCEEDINGS THAT NO NOTICE U/S.143(2) WAS ISSUED AND HAS COOPERATED IN ENQUIRIES MADE RELATING TO RE-ASSESSMENT AND FILED SUBMISSION. ACCORDING T O HIM, IN VIEW OF THE PROVISIONS OF SECTION 292BB INSERTED BY THE FINANCE ACT, 2008 W.E.F. 01- 04-2008, THE NOTICE ISSUED U/S.143(2) REQUIRED TO B E SERVED ON THE ASSESSEE SHALL BE DEEMED TO HAVE BEEN SERVED UPON THE ASSESS EE. 3.2 SO FAR AS THE ORDER OF THE ASSESSING OFFICER IN INVOKING THE PROVISIONS OF SECTION 50C IS CONCERNED, HE HELD THA T THE ASSESSEE HAS UNDISPUTEDLY PURCHASED THE PLOT OF LAND FOR SETTING UP OF A PRINTING PRESS. IT IS NOT UNDISPUTED FACT THAT THE BUSINESS OF THE ASS ESSEE IS NOT THAT OF TRADING IN PLOTS AND HENCE THE PLOT PURCHASED WAS NOT STOCK IN TRADE OF THE ASSESSEE. ACCORDING TO HIM, AN ASSET, I.E. PLOT PURCHASED FOR SETTING UP BUSINESS OF PRINTING PRESS ON THE SAID PLOT IS A CAPITAL ASSET OF THE BUSINESS AND NOT STOCK IN TRADE AND THEREFORE THE ASSESSING OFFICER HAS CO RRECTLY INVOKED THE PROVISIONS OF SECTION 50C OF THE I.T. ACT. 3.3 SO FAR AS THE ISSUE RAISED BEFORE HIM THAT ASSE SSING OFFICER SHOULD HAVE REFERRED THE PLOT OF LAND FOR VALUATION TO DVO , HE HELD THAT THE ASSESSEE HAS NEVER RAISED SUCH CONTENTION BEFORE TH E ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. FURTHER, NO GROUND HAS BEEN TAKEN BEFORE HIM ON THIS ISSUE. HE ACCORDINGLY DECIDED THE ISSU E OF REFERRING THE VALUATION TO DVO AGAINST THE ASSESSEE. 4 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE PREVAILING CIRCUMST ANCES OF THE CASE AND AS PER THE PROVISION OF LAW, IT MAY PLEASE BE HELD THA T THE LEARNED CIT(A) HAS GROSSLY ERRED IN HOLDING THAT PROCEEDING INITIATED VIDE NOTICE U/S.148 DT.06-11-2009 ARE VALID, THOUGH IT WAS INITIATED FO R THE SAME REASONS RECORDED AT THE TIME OF INITIATION OF FIRST PROCEED INGS VIDE NOTICE U/S.148 DT.12-03-2009, WHICH WERE DROPPED. THERE IS NO ANY ADDITIONAL NEW INFORMATION IN THE HANDS OF A.O FOR SUCH INITIATION OF NEW PROCEEDINGS. THEREFORE, PROCEEDINGS INITIATED U/S.148 DT.06-11-2 009 MAY PLEASE BE HELD AS ILLEGAL AND BAD IN LAW. 2. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCES OF THE CASE AND AS PER THE PROVISION OF LAW, IT MAY PLEASE BE HELD THA T THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE VALIDITY OF ASSESSM ENT ORDER PASSED U/S.143(3) RWS 147 DT.18-10-2010, THOUGH CATEGORICA LLY ADMITTED IN THE APPELLATE ORDER THAT NO NOTICE U/S.143(2) WAS ISSUE D TO THE APPELLANT. IN ABSENCE OF ANY COMPLIANCE TO THE NOTICE U/S.148 DT. 06-11-2009 AND AS THE NOTICE U/S.143(2) WAS NOT ISSUED, THE ORDER PAS SED U/S.143(3) RWS 147 IS WITHOUT HAVING JURISDICTION AND HENCE, THE O RDER PASSED BY A.O IS VOID AB INITIO AND BAD IN LAW. THEREFORE, ASSESSMEN T ORDER MAY PLEASE BE ANNULLED. 3. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCES OF THE CASE AND AS PER THE PROVISION OF LAW, IT MAY PLEASE BE HELD THAT THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE VALIDITY OF ASSE SSMENT ORDER, EVEN AFTER FINDING THAT NO NOTICE UNDER SECTION 143(2) O F THE INCOME-TAX ACT, WAS ISSUED UPON THE APPELLANT. REASONS ASSIGNED BY HIM ARE WRONG AND CONTRARY TO THE PROVISION OF INCOME-TAX ACT, READ W ITH JUDICIAL PROPOSITION. 4. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCES OF THE CASE AND AS PER THE PROVISION OF LAW, IT MAY PLEASE BE HELD THAT THE LEARNED CIT(A) HAS GROSSLY ERRED IN HOLDING THAT IN VIEW OF THE PR OVISION OF SECTION 292BB OF THE I.T ACT, THE ASSESSMENT ORDER PASSED U /S.143(3) RWS 148 IS VALID, THOUGH IT IS CATEGORICALLY ADMITTED BY HIM I N THE APPELLATE ORDER THAT NO NOTICE U/S.143 (2) WAS ISSUED, WHICH IS MAN DATORY FOR PASSING THE ORDER U/S.143(3)RWS 148 OF THE I ACT, IN VIEW OF THE PRINCIPLE LAID DOWN BY HON. SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BL UE MOON[2010] 321 362(SC). AS THE APPELLANT HAS NOT COMPLIED WITH THE NOTICE U/S.148 AND AS THE NOTICE U/S,143(2) WAS NOT ISSUED AND APPELLANT HAS NOT P ARTICIPATED IN THE RE-ASSESSMENT PROCEEDINGS, AS TO HOW APPELLANT CAN FILE T HE OBJECTION AND HENCE, JURISDICTIONAL DEFECTS CANNOT BE CURED BY PROV ISION OF SECTION 292 BB OF THE 1 T ACT . THEREFORE, ASSESSMENT ORDER PASSED U/S .143(2) RWS 147 BY A.O IS WITHOUT JURISDICTION AND CONFIRMED BY CIT(A), IS BAD IN LAW AND VOID AB INITIO AND HENCE, IT MAY PLEASE BE ANNULLED. 5. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANC ES OF THE CASE AND AS PER THE PROVISION OF LAW, THE LEARNED INCOME-TAX OFFICER AND C1T(A) HAS ERRED IN INVOKING THE PROVISION OF SECTION 50 C OF THE I. T AC T AND TAX THE SHORT TERM CAPITAL GAIN AT RS. 12,41, 600/-,INSTEAD OF BUSINES S LOSS OF RS.53,400/-, SHOWN BY THE APPELLANT AS THE SAID PLOT WAS PURCHASED WITH THE INTENTION TO USE IT FOR 5 THE PURPOSES OF THE BUSINESS OF APPELLANT. TO DECIDE THE NATURE OF CAPITAL GAIN, THE INTENTION OF THE APPELLANT IS IMPORTANT FA CTOR. THUS, AFORESAID FINDING AND CONCLUSION OF LOWER AUTHORITIES MAY PLE ASE BE VACATED. 6. WITHOUT PREJUDICE TO THE GROUND NO. 5, ONCE, APPELLANT SAYS THAT THE PROVISION OF SECTION 50C IS NOT APPLICABLE TO THE T RANSACTION OF THE APPELLANT AND DISPUTED THE APPLICABILITY OF PROVISION OF SECTI ON 50C OF THE I. T ACT, THE A.O SHOULD HAVE REFERRED THE MATTER TO THE DVO IN VI EW OF THE PROVISION OF SECTION,50(2) OF THE I T ACT, TO JUSTIFY HIS ACTION. A.O FAILED TO DO SO. THEREFORE APPELLANT SINCERELY REQUEST TO THE HON MEMBERS, IF T HE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE, A FURTHER OPPORTUNITY MAY PLEASE BE GRANTED TO THE APPELLANT AND A.O MAY PLEASE BE DIRECTED TO REF ER THE MATTER TO THE DVO FOR ASCERTAINING THE CORRECT FAIR MARKET VALUE OF T HE IMPUGNED PROPERTY. 7. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANC ES OF THE CASE AND AS PER THE PROVISION OF LAW, THE LEARNED C1T(A) HAS GROSSLY ER RED IN HOLDING THAT THE PROVISION OF SECTION 234 B IS MANDATORY, EVEN THOU GH THE INCOME OF THE APPELLANT IS BELOW THE LIMIT LIABLE TO ADVANCE-TAX A ND HENCE THERE IS NO LIABILITY TO MAKE ANY PAYMENT OF ADVANCE TAX IN VIE W OF THE PROVISION OF SECTION 208, 209 & 210 OF THE I.T ACT AND HENCE APP ELLANT DENIES HIS LIABILITY TO PAY ADVANCE TAX AND CONSEQUENTLY THE PROVISION OF S ECTION U/S.234B OF THE I.T ACT IS NOT ATTRACTED. THEREFORE, FINDING OF THE CIT (A) MAY PLEASE BE VACATED AND DELETE THE INTEREST CHARGED U/S.234 B OF THE I T ACT. 8. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEND, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF THE A PPEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 4.1 THE ASSESSEE HAS ALSO TAKEN AN ADDITIONAL GROUN D WHICH READS AS UNDER : SINCE THE APPELLANT ASSESSEE HAS NOT FILED ANY RETURN O F INCOME IN PURSUANCE OF NOTICE DATED 06-11-2009 ISSUED BY THE LD. ASSESSING OFFICER U/S.148 OF THE I.T. ACT, 1961 FOR THE A.Y. 2008-09, THE LD. ASSESSING OFFICER OUGHT TO HAVE FRAMED THE IMPUGNED REASSESSMENT U/S.144 OF THE I.T. ACT, 1961. IN THE CIRCUMSTANCES THE IMPUGNED REASSESSMENT OR DER PASSED BY THE LD. ASSESSING OFFICER U/S.143(3) R.W.S. 147 OF THE I.T. A CT, 1961 BEING BAD IN LAW AND VOID AB-INITIO THE LD.CIT(A) OUGHT TO HAVE ANNULLED THE SAME. THE IMPUGNED REASSESSMENT ORDER MAY PLEASE BE ANNULLED. 4.2 AFTER HEARING BOTH THE SIDES, THE ADDITIONAL GR OUND FILED BY THE ASSESSEE BEING A LEGAL ONE FOR WHICH NO FRESH FACTS ARE NECESSARY TO BE EXAMINED IS ADMITTED FOR ADJUDICATION. 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT NO NOTICE U/S.143(2) HAS BEEN ISSUED BY THE ASSESSING OFFICER AFTER THE ISSUE OF NOTICE U/S.148. REFERRING TO THE DECISION OF THE H ONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. K.M. RAVJI VIDE TAX APPEAL NO.771/2010 ORDER 6 DATED 18-07-2011 ( A COPY OF WHICH WAS FILED DURING THE COURSE OF HEARING) HE SUBMITTED THAT THE HONBLE HIGH COURT IN THE SAI D DECISION HAS HELD THAT IN ABSENCE OF ISSUE OF NOTICE U/S.143(2) OF THE ACT WITHIN THE TIME ENVISAGED BY THE LEGISLATURE IN THE SAID PROVISIONS, THE ASSE SSMENT PROCEEDING BECOMES INVALID. REFERRING TO THE SAID DECISION, H E SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD IN THE SAID DECISION TH AT SECTION 292BB DOES NOT SAVE THE REVENUE FOR NON-ISSUE OF NOTICE BEFORE THE EXPIRY OF LIMITATION PERIOD. IT HAS BEEN HELD THAT SECTION 292BB CAN CU RE ONLY A DEFECT IN SERVICE, SERVICE WITHIN TIME OR IMPROPER SERVICE OF NOTICE. IT IS NOT AIMED AT CURING THE DEFECT OF NON-ISSUANCE OF NOTICE WITHIN THE STATUTORY PERIOD. 5.1 REFERRING TO THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. CEBON INDIA LTD. REPOR TED IN 347 ITR 583 HE SUBMITTED THAT THE HONBLE HIGH COURT IN THE SAID D ECISION HAS HELD THAT IN ABSENCE OF SERVICE OF NOTICE U/S.143(2) WITHIN THE STIPULATED TIME, THE ASSESSING OFFICER HAS NO JURISDICTION TO MAKE ASSES SMENT. IT HAS BEEN HELD THAT ABSENCE OF NOTICE CANNOT BE HELD TO BE CURABLE U/S.292BB OF THE ACT. HE ACCORDINGLY SUBMITTED THAT IN VIEW OF THE ABOVE 2 HIGH COURT DECISIONS THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICE R IS VOID AB-INITIO SINCE NO NOTICE U/S.143(2) HAS BEEN ISSUED AND SERVED ON THE ASSESSEE. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED TH AT THE ASSESSEE HAS NEVER RAISED THIS ISSUE BEFORE THE ASSESSING OFFICER AND HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. THEREFORE, PROVISIONS OF S ECTION 292BB WILL TAKE CARE OF ANY LACUNA IN THE SERVICE OF THE NOTICE U/S .143(2) OR NON-SERVICE OF 7 THE SAME. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) ON THIS ISSUE BE UPHELD. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSESSEE . THERE IS NO DISPUTE TO THE FACT THAT IN THE INSTANT CASE NO NOTICE U/S.143 (2) HAS BEEN ISSUED AND SERVED ON THE ASSESSEE, A FACT BROUGHT ON RECORD BY THE CIT(A). WHILE ADJUDICATING THE ISSUE, THE LD.CIT(A) HAS SIMPLY ME NTIONED THAT ALTHOUGH NO NOTICE U/S.143(2) WAS ISSUED, HOWEVER, THE ASSES SEE HAS COOPERATED IN ENQUIRIES MADE RELATING TO RE-ASSESSMENT AND FILED SUBMISSIONS. THEREFORE, ACCORDING TO HIM, IN VIEW OF THE PROVISIONS OF SECT ION 292BB INSERTED BY THE FINANCE ACT, 2008 W.E.F. 01-04-2008, THE NOTICE U/S.143(2) REQUIRED TO BE SERVED SHALL BE DEEMED TO HAVE BEEN SERVED UPON THE ASSESSEE. HOWEVER, WE DO NOT AGREE WITH THE ABOVE PROPOSITION OF THE LD.CIT(A). WE FIND AN IDENTICAL ISSUE HAD COME UP BEFORE THE H ONBLE GUJARAT HIGH COURT WHERE THE FOLLOWING QUESTION WAS RAISED BY TH E REVENUE BEFORE THE HONBLE HIGH COURT : WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LAW AND ON FACTS IN REVERSING THE ORDER PASSED BY CIT(A) AND THEREBY ANNULLING THE ASSESSME NT ORDER ON THE GROUND THAT THE NOTICE U/S.143(2) OF THE ACT WAS ISSUED AFTER A PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED BY THE ASSESSEE? 7.1 WE FIND THE HONBLE HIGH COURT IN THE SAID DECI SION DISMISSED THE APPEAL FILED BY THE REVENUE BY HOLDING AS UNDER : 3. IN THE PRESENT APPEAL, REVENUE'S MAIN THRUST IS ON THE PROVISIONS CONTAINED IN SECTION 292BB OF THE ACT, WHICH SECTIO N WAS INTRODUCED BY THE FINANCE ACT, 2008 WITH EFFECT FROM 1.4.2008. SECTIO N 292 BB READS AS UNDER:- 8 'WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING O R CO- OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT O R REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UN DER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERV ED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WIT H THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE P RECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY U NDER THIS ACT THAT THE NOTICE WAS- (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.' 4. IT IS THE CASE OF THE REVENUE THAT BY VIRTUE OF THE PROVISIONS OF CONTAINED IN SECTION 292BB OF THE ACT, THE ASSESSEE WAS PRECLUDED FROM RAISING ANY CONTENTION REGARDING EITHER NON-SERVICE OF THE NOTICE WITHIN TIME OR IMPROPER SERVICE OF THE NOTICE UNDER THE AC T IN VIEW OF THE ASSESSEE APPEARING BEFORE THE ASSESSING OFFICER AND NOT HAVING RAISED ANY CONTENTION WITH RESPECT TO DEFECTIVE SERVICE OF THE NOTICE. 5. IT IS THE CASE OF THE REVENUE THAT THE ASSESSEE , HAVING PARTICIPATED IN THE ASSESSMENT PROCEEDINGS WITHOUT RAISING ANY C ONTENTION REGARDING BELATED SERVICE OF THE NOTICE, BY VIRTUE OF THE PRO VISIONS OF SECTION 292BB OF THE ACT, WAS PRECLUDED FROM SO DOING AT AN APPELLATE STAGE. 6. IT IS ALSO THE CASE OF THE REVENUE THAT THE PRO VISIONS OF SECTION 292BB OF THE ACT ARE PROCEDURAL IN NATURE AND, THER EFORE, WOULD APPLY TO ALL PENDING PROCEEDINGS. COUNSEL FOR THE REVENUE , THEREFORE, VEHEMENTLY CONTENDED THAT THE TRIBUNAL'S ORDER REQU IRES INTERFERENCE. 7. WE MAY, HOWEVER, RECALL THAT THE DEFECT POINTED OUT BY THE ASSESSEE WAS NOT WITH RESPECT TO SERVICE OF THE NOT ICE OR ITS SERVICE BEYOND TIME PERMITTED BUT ON THE VERY ISSUANCE OF T HE NOTICE AFTER THE LAST DATE ENVISAGED IN SECTION 143(2) OF THE ACT HA D PASSED. IN CASE OF ASSISTANT COMMISSIONER OF INCOME-TAX VS. HOTEL BLUE MOON REPORTED IN [2010] 321 ITR 362(SC), THE APEX COURT, WHILE EXAMI NING THE QUESTION OF REQUIREMENT OF ISSUANCE OF NOTICE UNDER SECTION 143 (2) OF THE ACT IN THE CONTEXT OF THE BLOCK ASSESSMENT UNDER SECTION 158BC OF THE ACT, HELD THAT EVEN IN BLOCK ASSESSMENT CASES IF THE ASSESSME NT IS TO BE COMPLETED UNDER SECTIONL43(2) OF THE ACT READ WITH SECTION 15 8BC, NOTICE UNDER SECTIONL43(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN. IT WAS ALSO HELD THAT THE OMISSIO N ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 1 43(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND THAT, THEREFORE, REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT B E DISPENSED WITH. 8. IN THE PRESENT CASE, ADMITTEDLY, NO NOTICE WAS ISSUED UNDER SECTION L43(2) OF THE ACT WITHIN THE TIME ENVISAGED BY THE LEGISLATURE IN THE SAID PROVISION. THAT BEING THE POSITION, QUESTI ON OF ITS SERVICE EITHER WITHIN OR BEYOND THE TIME PERMITTED, OR ITS IMPROPE R SERVICE WOULD NOT ARISE. WHAT SECTION 292BB OF THE ACT DEBARS IS ANY CHALLENGE BY THE ASSESSEE, WHO APPEARED BEFORE THE ASSESSING OFFICER WITH RESPECT TO NON-SERVICE, SERVICE WITHIN TIME OR IMPROPER SERVIC E OF A NOTICE PROVIDED HE HAS NOT RAISED SUCH AN OBJECTION BEFORE COMPLETION OF THE ASSESSMENT OR REASSESSMENT PROCEEDINGS. 9 9. SIGNIFICANTLY, SECTION 292BB DOES NOT SAVE NON-IS SUANCE OF NOTICE BEFORE THE EXPIRY OF LIMITATION PERIOD. IN OU R VIEW, SECTION 292BB CAN CURE ONLY A DEFECT IN SERVICE, SERVICE WIT HIN TIME, OR IMPROPER SERVICE OF NOTICE. IT IS NOT AIMED AT CURIN G THE DEFECT OF NON- ISSUANCE OF NOTICE WITHIN THE STATUTORY PERIOD. 7.2 SIMILARLY WE FIND THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CEBON INDIA LTD. (SUPRA) HAS ALSO DECIDED A N IDENTICAL ISSUE. WE FIND THE QUESTIONS RAISED BEFORE THE HONBLE HIGH C OURT ARE AS UNDER : 'L. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TRIBUNAL IS RIGHT IN LAW IN HOLDING THAT THERE WAS NO VA LID SERVICE OF NOTICE UNDER S. 143(2) BEFORE THE DUE DATE EVEN THOUGH THE AO HAD ISSUED THE NOTICE UNDER S. 143(2) ON 11/13TH NOV., 1997 VIDE DI SPATCH NO. 2640 AND SUBSEQUENTLY, THE ASSESSEE PARTICIPATED IN THE PROCEE DINGS ? 2. WITHOUT PREJUDICE TO ABOVE, WHETHER THE TRIBUNAL IS R IGHT IN NOT TREATING THE DEFECT IF ANY IN SERVICE OF NOTICE UNDER S. 143(2) AS AN IRREGULARITY CURABLE UNDER S. 292BB OF THE IT ACT, 1961 ?' 7.3 WE FIND THE HONBLE HIGH COURT WHILE DECIDING T HE ISSUE HAS HELD AS UNDER: 5. WE FIND THAT CONCURRENT FINDING HAS BEEN RECORDED BY THE CIT(A) AS WELL AS THE TRIBUNAL ON THE QUESTION OF DATE OF SERVICE OF NOT ICE. NOTICE WAS NOT SERVED WITHIN THE STIPULATED TIME. MERE GIVING OF DISPATCH NUMBER WILL NOT RENDER THE SAID FINDING TO BE PERVERSE. IN ABSENCE OF NOTICE BEING SERVED, THE AO HAD NO JURISDICTION TO MAKE ASSESSMENT. ABSENCE OF NOTICE CANN OT BE HELD TO BE CURABLE UNDER S. 292BB OF THE ACT. 7.5 THE FACTS IN THE INSTANT CASE ARE STILL WORSE. ADMITTEDLY NO NOTICE U/S.143(2) HAS BEEN ISSUED TO THE ASSESSEE IN THE I NSTANT CASE. THEREFORE, IN VIEW OF THE ABOVE 2 DECISIONS CITED (SUPRA) WE HOLD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS VOID AB-I NITIO DUE TO NON-ISSUE OF NOTICE U/S.143(2). 8. SINCE THE ASSESSEE SUCCEEDS ON THIS PRELIMINARY ISSUE THE VARIOUS OTHER GROUNDS RAISED BY THE ASSESSEE BECOME ACADEMI C IN NATURE AND THEREFORE ARE NOT BEING ADJUDICATED. 10 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 08-01-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB ER PUNE, DATED : 08 TH JANUARY 2014 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A), AURANGABAD 4. THE CIT, AURANGABAD 5. D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE