P.Shanmugam, Coimbatore V. ITO, Coimbatore

ITA 202/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8152 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 04-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Question of law; Procedural lapse; Assessment record; Block assessment; Reassessment proceedings; Capital Gains; CHAPTER XIVB
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 142(1); 292BB; 143(2); 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./I.T.A. NO.202/MDS/2016 / ASSESSMENT YEAR : 2011-2012. SHRI. P. SHANMUGAM, NO.11/1, ARUMUGAM LAYOUT, ANNA NAGAR, PEELAMEDU, COIMBATORE 641 004. VS. INCOME TAX OFFICER, NON CORPORATE WARD I (5) [PREVIOUSLY WARD II (4)] COIMBATORE [PAN APQPS 7331R] ( / APPELLANT) ( /RESPONDENT) ! / APPELLANT BY : SHRI. T. BANUSEKAR, C.A. '# ! /RESPONDENT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. $ %& /DATE OF HEARING : 05-01-2017 '( %& /DATE OF PRONOUNCEMENT : 11-01-2017 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER: IN THIS APPEAL FILED BY THE ASSESSEE, IT ASSAILS JURISDICTION OF THE LD. ASSESSING OFFICER TO PASS THE ASSESSMENT O RDER WITHOUT ISSUING NOTICE U/S.143(2) OF THE INCOME TAX ACT, 1961 (HER EIN AFTER REFERRED TO AS THE ACT). ITA NO. 202/MDS/2016. :- 2 -: 2. THE APPEAL HAS BEEN FILED WITH A DELAY OF TWO HUNDR ED AND SIXTY EIGHT DAYS. IN THE CONDONATION PETITION FILE D, IT IS STATED THAT ASSESSEE HAD APPROACHED ONE SHRI. V. RAMNATH, CHART ERED ACCOUNTANT ON 25.03.2015 FOR ADVISING ON THE COURSE OF ACTION THAT WAS TO BE TAKEN ON THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) RECEIVED BY HIM ON 13.03.2015. IT IS ALSO STATED I N THE AFFIDAVIT THAT SHRI. V. RAMNATH, HAD INSTRUCTED HIS EMPLOYEE ONE S HRI. M. KARTHIK KUMAR TO FILE THE APPEAL WHICH WERE SIGNED BY THE ASSESSEE. THE AFFIDAVIT SAYS THAT SHRI. M. KARTHIK KUMAR HAD LEFT THE OFFICE OF SHRI. V. RAMNATH, WITHOUT INFORMING THAT THE APPEAL WAS NOT FILED. AS PER ASSESSEE, IT CAME TO KNOW THAT APPEAL WAS NOT FILED ONLY ON RECEIVING NOTICE FOR LEVY OF PENALTY U/S.271(1) (C) OF THE A CT. AS PER ASSESSEE IMMEDIATELY WHEN THE MATTER CAME TO HIS NOTICE, HE ENSURED THAT THE APPEAL WAS FILED. AS PER ASSESSEE THE DELAY OF 268 DAYS, IN FILING THE APPEAL WAS NOT DUE TO ANY NEGLIGENCE. 3. OPPOSING THE DELAY PETITION, LD. DEPARTMENTAL REPRE SENTATIVE SUBMITTED THAT THERE WAS NOTHING ON RECORD TO SHOW THAT DELAY WAS DUE TO A FAILURE WHICH HAPPENED IN THE OFFICE OF SH RI. V. RAMNATH, CHARTERED ACCOUNTANT. 4. WE HAVE PERUSED THE AFFIDAVITS AND ALSO CAREFULLY H EARD THE PARTIES. WE FIND THAT CONDONATION PETITION OF THE ASSESSEE IS SUPPORTED BY AN AFFIDAVIT FILED BY SHRI. V. RAMNATH , WHO WAS A PARTNER ITA NO. 202/MDS/2016. :- 3 -: IN THE FIRM M/S. K.S. PALANISWAMY & CO., CHARTERED ACCOUNTANTS, COIMBATORE. SHRI. V. RAMNATH IN THE SAID AFFIDAVIT HAS GIVEN REASONS FOR THE DELAY IN FILING THE APPEAL. ACCORDING TO H IS AFFIDAVIT, THE APPEAL WAS TO BE FILED BY ONE SHRI. KARTHIK KUMAR AN ARTI CLED CLERK IN HIS OFFICE WHO HAD LEFT ABRUPTLY, WITHOUT INFORMING THA T THE APPEAL WAS NOT FILED. WE FIND THAT NO REASON HAS BEEN SHOWN BY TH E LD. DEPARTMENTAL REPRESENTATIVE FOR DISBELIEVING THE AFFIDAVIT FILE D BY SHRI. V. RAMNATH, CHARTERED ACCOUNTANT. WE THEREFORE, DEEM IT FIT TO CONDONE THE DELAY. DELAY IS CONDONED AND APPEAL IS ADMITTED. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE W AS NO ISSUANCE OF NOTICE U/S.143(2) OF THE ACT. AS PER LD . AUTHORISED REPRESENTATIVE IT WAS AN ASSESSMENT WHICH WAS REOPE NED PURSUANT TO A SURVEY U/S.133A OF THE ACT IN THE PREMISES OF THE ASSESSEE. AS PER LD. AUTHORISED REPRESENTATIVE ASSESSEE HAD FILED RE TURN OF INCOME PURSUANT TO THE NOTICE U/S.148 OF THE ACT. LD. AUT HORISED REPRESENTATIVE SUBMITTED THAT ASSESSING OFFICER NEV ER ISSUED A NOTICE U/S.143(2) OF THE ACT. AS PER LD. AUTHORISED REPRE SENTATIVE SECTION 292BB OF THE ACT WOULD NOT CURE A CASE WHERE THERE WAS NO ISSUE OF NOTICE U/S.143(2) OF THE ACT. AS PER LD. AUTHORISE D REPRESENTATIVE JUST BECAUSE ASSESSEE ATTENDED PROCEEDINGS BEFORE LD. AS SESSING OFFICER AND ANSWERED QUERIES RAISED BY THE LD. ASSESSING O FFICER WOULD NOT ITA NO. 202/MDS/2016. :- 4 -: VALIDATE AN ASSESSMENT DONE WITHOUT ISSUING NOTICE U/S.143(2) OF THE ACT. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD REJECTED THESE ARGUMENTS T AKEN BY THE ASSESSEE OBSERVING THAT JUDGMENT OF APEX COURT IN T HE CASE OF ACIT VS. BLUE MOON 321 ITR 362 WOULD NOT APPLY TO A RE-ASSESSMENT PROCEEDINGS U/S.147 OF THE ACT. LD. AUTHORISED REP RESENTATIVE SUBMITTED THAT APPEARANCE OF THE ASSESSEE OR HIS RE PRESENTATIVE BEFORE LD. ASSESSING OFFICER PURSUANT TO A SUMMONS ISSUED U/S.131 OF THE ACT COULD NOT SUBSTITUTE THE REQUIREMENT OF ISSUING OF NOTICE U/S.143(2) OF THE ACT. AS PER ASSESSEE THE VIEW TAKEN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS INCORRECT. LD. AUTHORISED REPRESENTATIVE ALSO SUBMITTED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD RELIED ON A JUDGMENT OF DELHI HIGH COURT IN THE CAS E OF CIT VS. MADHYA BHARAT ENERGY CORPORATION LTD 337 ITR 389 FOR HOLDING THE ASSESSMENT TO HAVE BEEN VALIDLY DONE. AS PER LD. AUTHORISED REPRESENTATIVE THE SAID JUDGMENT WAS RECALLED BY DELHI HIGH COURT IN A REVIEW PETITION FILED BY THE CONCERNED ASSESSEE. RELIANCE WAS PLACE D ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN THE CASE OF SAPTHAGIRI FINANCE & INVESTMENTS VS. ITO (2013) 90 DTR 289 THAT OF HONBLE DELHI HIGH COURT IN THE CASES OF PR. COMMISSIONER OF INCOME TAX VS. SILVER LINE, 383 ITR 455 AND PR. COMMISSIONER OF INCOME TAX VS. SHRI JAI SHIV SHANKAR TRADERS PVT. LTD 383 ITR 448 . ITA NO. 202/MDS/2016. :- 5 -: 6. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THE ASSESSMENT WAS COMPLETED BASED ON THE RETURN FI LED BY THE ASSESSEE PURSUANT TO NOTICE ISSUED U/S. 148 OF THE ACT, ACCEPTING THE INCOME RETURNED. ACCORDING TO LD. DEPARTMENTAL REP RESENTATIVE ASSESSEE HAVING PARTICIPATED IN THE ASSESSMENT PROC EEDINGS, WANT OF NOTICE U/S.143(2) OF THE ACT STOOD CURED BY SEC. 29 2BB OF THE ACT. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DOUBT THAT LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAD APPEARED BEFORE LD. ASSESSING OFFICER DURING THE COURSE OF RE-ASSESSMENT PROCEEDI NGS. WE HAVE ALSO PERUSED THE ASSESSMENT RECORDS. NOTHING WHATSOEVER IS MENTIONED REGARDING ISSUE OF ANY NOTICE U/S.143(2) OF THE ACT , EITHER IN THE ORDER SHEET OR AT ANY PLACE IN THE CONCERNED FILE. LD. D EPARTMENTAL REPRESENTATIVE HAS ALSO NOT STRONGLY CONTESTED THE CLAIM OF THE ASSESSEE THAT THERE WAS NO ISSUE OF NOTICE U/S.143( 2) OF THE ACT. THE QUESTION WHETHER ISSUE OF NOTICE U/S.143(2) OF THE ACT IS MANDATORY IN A RE-ASSESSMENT PROCEEDINGS U/S.147 OF THE ACT STAN DS ANSWERED BY HONBLE JURISDICTIONAL HIGH COURT IN THE JUDGMENT I N SAPTHAGIRI FINANCE & INVESTMENTS (SUPRA) . THEIR LORDSHIP HELD AS UNDER AT PARAS 12 & 13 OF THE JUDGMENT. 12. AS FAR AS THE CONTENTION OF THE REVENUE THAT FAILURE TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT IS ONLY CURA BLE DEFECT IS CONCERNED, THE DECISION RELIED ON BY THE ASSESSEE R EPORTED IN 321 ITR 362 ASST. CIT V. HOTEL BLUE MOON, ALSO COVERS THE ITA NO. 202/MDS/2016. :- 6 -: SAID ISSUE. IT IS NO DOUBT TRUE THAT THE SAID DECI SION DEALT WITH THE ASSESSMENT DONE UNDER CHAPTER XIV RELATING TO B LOCK ASSESSMENT. THE ASSESSEE THEREIN RAISED A CONTENTIO N THAT THE FAILURE TO ISSUE NOTICE UNDER SECTION 143(2) WITHIN THE PRESCRIBED TIME FOR THE PURPOSE OF BLOCK ASSESSMENT COULD BE F ATAL TO THE VALIDITY OF THE ASSESSMENT MADE UNDER CHAPTER XIVB OF THE INCOME TAX ACT, 1961. IN OTHER WORDS, THE ASSESSEE CONTENDED THAT THE ISSUANCE OF NOTICE UNDER SECTION 143(2) WI THIN THE PRESCRIBED PERIOD OF TIME FOR THE PURPOSE OF BLOCK ASSESSMENT IS MANDATORY FOR ASSESSING THE ASSESSEE'S UNDISCLOSED INCOME FOUND DURING THE SEARCH. THE REVENUE TOOK THE STAND THAT ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT WAS ONLY PROCEDURAL IRREGULARITY WHICH WAS CURABLE. THE APEX COURT POIN TED OUT TO SECTION 158BC(B) PROVIDED FOR DETERMINATION OF THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND THE PROVISIONS OF SECTION 142, SUB SECTIO NS (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHA LL, SO FAR AS MAY BE, APPLY. THE APEX COURT POINTED OUT AFTER RET URN IS FILED, THE ASSESSING OFFICER HAS TO FOLLOW THE PROCEDURE L IKE THE ISSUE OF NOTICE UNDER SECTION 143(2)/142 AND COMPLETE THE AS SESSMENT UNDER SECTION 143(3). IN THE EVENT, THE ASSESSEE IS NOT FILING THE RETURN OR NOT COMPLYING WITH THE NOTICE UNDER SECTI ON 143(2)/142, THE OFFICER IS AUTHORISED TO COMPLETE T HE ASSESSMENT EX PARTE UNDER SECTION 144. THE APEX COURT FURTHER POINTED OUT THAT NOTICE UNDER SECTION 143(2) WOULD BECOME NECES SARY ONLY WHERE THE BLOCK RETURN DOES NOT CONFORM UNDISCLOSED INCOME INFERRED BY THE AUTHORITIES. THUS, IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 15 8BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YE AR FROM THE DATE OF FILING OF THE BLOCK RETURN. THE APEX COURT FURTHER HELD THAT OMISSION ON THE PART OF THE ASSESSING AUTHORIT Y TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE, AND THEREFORE, THE REQ UIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WIT H. THE LEGISLATION REFERRING TO THE COMPLIANCE OF THE PROV ISIONS UNDER SECTION 143, 144 AND 145 OF THE ACT IS A LEGISLATIO N BY INCORPORATION. THUS, WHERE THE ASSESSING OFFICER RE PUDIATES THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 158BC(A), THE ASSESSING OFFICER MUST NECESSARILY IS SUE NOTICE UNDER SECTION 143(2) OF THE ACT. DEALING WITH THE C ONTENTION THAT THE ISSUE OF NOTICE IS NOT MANDATORY BUT OPTIONAL A ND IS TO BE APPLIED TO THE EXTENT PRACTICABLE, IN VIEW OF EXPRE SSION 'SO FAR AS MAY BE' IN SECTION 153BC(B), THE APEX COURT POINTED OUT THAT THE EXPRESSION 'SO FAR AS MAY BE' HAS ALWAYS BEEN C ONSTRUED TO MEAN THAT THOSE PROVISIONS MAY BE GENERALLY FOLLOWE D TO THE EXTENT POSSIBLE. REJECTING THE CONTENTION OF THE RE VENUE THAT IT IS NOT EXPEDIENT TO FOLLOW THE PROVISIONS UNDER SEC TIONS 142 AND 143 (2) AND (3) STRICTLY FOR THE PURPOSE OF BLOCK A SSESSMENT, THE ITA NO. 202/MDS/2016. :- 7 -: APEX COURT HELD THAT IN COMPLETING THE ASSESSMENT, WHEN THE OFFICER REPUDIATES THE RETURN FILED UNDER SECTION 1 58BC(A) PROCEEDS TO MAKE AN ENQUIRY, HE HAS NECESSARILY TO FOLLOW THE PROVISIONS OF SECTION 142 AND 143 (2) AND (3) OF TH E ACT. 13. AS FAR AS THE PRESENT CASE IS CONCERNED, THE PR OVISIONS OF SECTION 148 ALSO USES THE EXPRESSION 'SO FAR AS MAY BE APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139'. THUS, UNDERSTANDING T HIS PROVISIONS IN THE BACKGROUND OF THE DECISION OF THE APEX COURT, ON THE FACTS AVAILABLE, WE ARE OF THE VIEW THAT IN COMPLETING THE ASSESSMENT UNDER SECTION 148 OF THE ACT, COMPLIANC E OF THE PROCEDURE LAID DOWN UNDER SECTIONS 142 AND 143(2) I S MANDATORY. ON THE ADMITTED FACT THAT BEYOND NOTICE UNDER SECTION 142(1), THERE WAS NO NOTICE ISSUED UNDER SE CTION 143(2), AND IN THE LIGHT OF THE FACT THAT THE VERY BASIS OF THE REASSESSMENT WAS THE FAILURE ON THE PART OF THE ASS ESSEE IN NOT DISCLOSING THE CAPITAL GAINS ARISING ON THE TRANSFE R OF PROPERTY FOR ASSESSMENT AND THAT ADMITTEDLY THE ASSESSEE HAD REQ UESTED THE OFFICER TO ACCEPT THE ORIGINAL RETURN AS A RETURN F ILED IN RESPONSE TO SECTION 148 OF THE ACT, WE HOLD THAT THERE WAS T OTAL FAILURE ON THE PART OF THE REVENUE FROM COMPLYING WITH THE PRO CEDURE LAID DOWN UNDER SECTION 143(2) OF THE ACT, WHICH IS MAND ATORY ONE AS HELD BY THE APEX COURT. THUS THERE CAN BE NO QUARREL THAT ISSUE OF NOTICE U /S.143(2) OF THE ACT IS MANDATORY EVEN IN A RE-ASSESSMENT PROCEEDINGS. 8. COMING TO THE QUESTION WHETHER NON ISSUE OF SUCH NO TICE WAS CURED BY SEC. 292BB OF THE ACT, OBSERVATION OF HONBLE DELHI HIGH COURT IN THE CASE OF SHRI JAI SHIV SHANKAR TRADERS PVT. LTD (SUPRA ) APPEARING AT PARAS 15 TO 18 OF THAT JUDGMENT IS VE RY RELEVANT. THIS IS REPRODUCED HEREUNDER:- 15. IN A SUBSEQUENT JUDGMENT IN CIT VS. SALARPUR CO LD STORAGE (P) LTD. (2014) 50 TAXMANN.COM 105 (ALL) IT WAS HELD AS UNDER : ITA NO. 202/MDS/2016. :- 8 -: '10. SEC. 292BB OF THE ACT WAS INSERTED BY THE FINA NCE ACT, 2008 W.E.F. 1ST APRIL, 2008. SEC. 292BB OF THE ACT PROVIDES A DEEMING FICTION. THE DEEMING FICTION IS TO THE EFFECT THAT ONCE THE ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER THE PROVISIONS OF THE ACT, WHICH I S REQUIRED TO BE SERVED, ON THE ASSESSEE, HAS BEEN DU LY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THE ASSESSEE IS PRECLUDED FR OM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY T HAT THE NOTICE WAS (I) NOT SERVED UPON HIM; OR (II) NOT SERVED UPON HIM IN TIME; OR(III) SERVED UPON HIM IN AN IMP ROPER MANNER. IN OTHER WORDS, ONCE THE DEEMING FICTION CO MES INTO OPERATION, THE ASSESSEE IS PRECLUDED FROM RAIS ING A CHALLENGE ABOUT THE SERVICE OF A NOTICE, SERVICE WI THIN TIME OR SERVICE IN AN IMPROPER MANNER. THE PROVISO TO S. 292BB OF THE ACT, HOWEVER, CARVES OUT AN EXCEPTION TO THE EFFECT THAT THE SECTION SHALL NOT APPLY WHERE T HE ASSESSEE HAS RAISED AN OBJECTION BEFORE THE COMPLET ION OF THE ASSESSMENT OR REASSESSMENT. SEC. 292BB OF TH E ACT CANNOT OBVIATE THE REQUIREMENT OF COMPLYING WIT H A JURISDICTIONAL CONDITION. FOR THE AO TO MAKE AN ORD ER OF ASSESSMENT UNDER S. 143(3) OF THE ACT, IT IS NECESS ARY TO ISSUE A NOTICE UNDER S. 143(2) OF THE ACT AND IN TH E ABSENCE OF A NOTICE UNDER S. 143(2) OF THE ACT, THE ASSUMPTION OF JURISDICTION ITSELF WOULD BE INVALID .' 16. IN THE SAME DECISION IN CIT VS. SALARPUR COLD S TORAGE (P) LTD. (SUPRA), THE ALLAHABAD HIGH COURT NOTICED THAT THE DECISION OF THE SUPREME COURT IN ASSTT. CIT VS. HOT EL BLUE MOON (SUPRA) WHERE IN RELATION TO BLOCK ASSESSMENT, THE SUPREME COURT HELD THAT THE REQUIREMENT TO ISSUE NO TICE UNDER S. 143(2) WAS MANDATORY. IT WAS NOT 'A PROCED URAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THERE FORE, THE REQUIREMENT OF NOTICE UNDER S. 143(2) CANNOT BE DIS PENSED WITH.' 17. THE MADRAS HIGH COURT HELD LIKEWISE IN SAPTHAGI RI FINANCE & INVESTMENTS VS. ITO (2013) 90 DTR (MAD) 289 . THE FACTS OF THAT CASE WERE THAT A NOTICE UNDER S. 148 OF THE ACT WAS ISSUED TO THE ASSESSEE SEEKING TO REOPEN TH E ASSESSMENT FOR ASST. YR. 2000-01. HOWEVER, THE ASSE SSEE DID NOT FILE A RETURN AND THEREFORE A NOTICE WAS IS SUED TO IT UNDER S. 142(1) OF THE ACT. PURSUANT THERETO, THE A SSESSEE APPEARED BEFORE THE AO AND STATED THAT THE ORIGINAL RETURN FILED SHOULD BE TREATED AS A RETURN FILED IN RESPON SE TO THE NOTICE UNDER S. 148 OF THE ACT. THE HIGH COURT OBSE RVED THAT IF THEREAFTER, THE AO FOUND THAT THERE WERE PR OBLEMS WITH THE RETURN WHICH REQUIRED EXPLANATION BY THE A SSESSEE ITA NO. 202/MDS/2016. :- 9 -: THEN THE AO OUGHT TO HAVE FOLLOWED UP WITH A NOTICE UNDER S. 143(2) OF THE ACT. IT WAS OBSERVED THAT : 'MERELY BECAUSE THE MATTER WAS DISCUSSED WITH THE ASSESSEE AND THE SIGNATURE IS AFFIXED IT DOES NOT M EAN THE REST OF THE PROCEDURE OF NOTICE UNDER S. 143(2) OF THE ACT WAS COMPLIED WITH OR THAT ON PLACING THE OBJECTION THE ASSESSEE HAD WAIVED THE NOTICE FOR FURTHER PROCESSING OF THE REASSESSMENT PROCEEDINGS. THE FACT THAT ON THE NOTICE ISSUED UNDER S. 143(2) OF THE ACT, THE ASSESSEE HAD PLACED ITS OBJECTION AND REITERATED ITS EARLIER RETURN FILED AS ONE FILED IN RESPONSE TO THE NOTICE ISSUED UNDER S. 148 OF THE ACT AND TH E OFFICER HAD ALSO NOTED THAT THE SAME WOULD BE CONSIDERED FOR COMPLETING OF ASSESSMENT, WOULD SHOW THAT THE AO HAS THE DUTY OF ISSUING THE NOTICE UNDE R S. 143(3) TO LEAD ON TO THE PASSING OF THE ASSESSMENT. IN THE CIRCUMSTANCES, WITH NO NOTICE ISSUED UNDER S. 143(3) AND THERE BEING NO WAIVER, THERE IS NO JUSTI FIABLE GROUND TO ACCEPT THE VIEW OF THE TRIBUNAL THAT THER E WAS A WAIVER OF RIGHT OF NOTICE TO BE ISSUED UNDER S. 143(2) OF THE ACT.' 18. AS ALREADY NOTICED, THE DECISION OF THIS COURT IN CIT VS. VISION INC. (SUPRA) PROCEEDED ON A DIFFERENT SET OF FACTS. IN THAT CASE, THERE WAS A CLEAR FINDING OF THE COURT T HAT SERVICE OF THE NOTICE HAD BEEN EFFECTED ON THE-ASSE SSEE UNDER S. 143(2) OFTHE ACT. AS ALREADY FURTHER NOTIC ED, THE LEGAL POSITION REGARDING S. 292BB HAS ALREADY BEEN MADE EXPLICIT IN THE AFOREMENTIONED DECISIONS OF THE ALL AHABAD HIGH COURT. THAT PROVISION WOULD APPLY INSOFAR AS F AILURE OF 'SERVICE' OF NOTICE WAS CONCERNED AND NOT WITH REGA RD TO FAILURE TO 'ISSUE' NOTICE. IN OTHER WORDS, THE FAIL URE OF THE AO, IN REASSESSMENT PROCEEDINGS, TO ISSUE NOTICE UN DER S. 143(2) OF THE ACT, PRIOR TO FINALISING THE REASSESS MENT ORDER, CANNOT BE CONDONED BY REFERRING TO S. 292BB OF THE ACT. THUS, IT IS CLEAR THAT SEC. 292BB OF THE ACT CAN CU RE A CASE OF NON SERVICE OF NOTICE AND NOT A NON-ISSUE OF NOTICE. IN THE CASE BEFORE US, AS ALREADY MENTIONED BY US, THERE WAS NO ISSUE OF N OTICE U/S.143(2) OF THE ACT. ITA NO. 202/MDS/2016. :- 10 -: 9. BEFORE PARTING WITH IT, IT WILL BE INAPPROPRIATE IF WE DO NOT DEAL WITH THE ARGUMENT OF THE LD. DEPARTMENTAL REPR ESENTATIVE THAT SUCH NOTICE WAS HELD NOT MANDATORY BY HONBLE DELHI HIGH COURT IN THE CASE OF MADHYA BHARAT ENERGY CORPORATION LTD (SUPRA) . RELEVANCE OF THE ABOVE JUDGMENT WAS ALSO DISCUSSED BY DELHI HIGH COURT IN THE CASE OF SHRI JAI SHIV SHANKAR TRADERS PVT LTD (SUPRA ) AT PARAS 8 & 9 OF ITS JUDGMENT. 8. WHEN THIS APPEAL WAS FIRST LISTED BEFORE THIS COURT ON 29TH JULY, 2015 RELIANCE WAS PLACED BY MS. SURUCHI AGGARWAL, LEARNED SENIOR STANDING COUNSEL FOR THE REVENUE ON THE DECISION OF THIS COURT IN CI T VS. MADHYA BHARAT ENERGY CORPN. LTD. (2011) 245 CTR (DEL) 35 : (2011) 62 DTR (DEL) 37 : (2011) 337 ITR 389 (DEL) WHICH PURPORTED TO HOLD THAT NON-ISSUE OF NOTICE UNDER S. 143(2) OF THE ACT ON AN ASSESSEE PRIOR TO COMPLETION OF THE REASSESSMENT WOULD NOT B E FATAL TO THE REASSESSMENT. SHE ALSO SOUGHT TO DISTINGUISH THE DECISION IN ASSTT. CIT VS. HOTEL BL UE MOON (SUPRA) ON THE GROUND THAT IT PERTAINED TO A BLOCK ASSESSMENT. 9. DR. RAKESH GUPTA, LEARNED COUNSEL APPEARING FOR THE ASSESSEE, AT THE OUTSET DREW THE ATTENTION OF T HIS COURT TO AN ORDER PASSED BY THIS COURT ON 17TH AUG. , 2011 IN REVIEW PETN. NO. 441 OF 2011 IN IT APPEAL NO. 950 OF 2008 (CIT VS. MADHYA BHARAT ENERGY CORPORATION) WHEREBY THIS COURT REVIEWED ITS MAIN JUDGMENT IN THE MATTER RENDERED ON 11TH JULY, 2011 ON THE GROUND THAT THE SAID APPEAL HAD NOT BEEN ADMITTED ON THE QUESTION CONCERNING THE MANDATORY COMPLIANCE WITH THE REQUIREMENT OF ISSUANCE OF NOTICE UNDER S. 143(2) OF THE ACT. IN ITS REVIEW OR DER, THIS COURT NOTED THAT AT THE TIME OF ADMISSION OF T HE APPEAL ON 17TH FEB., 2011 AFTER NOTICING THAT IN TH E SAID CASE THAT NO NOTICE UNDER S. 143(2) HAD EVER BEEN ISSUED, THE COURT HELD THAT NO QUESTION OF LAW AROSE ON THAT ASPECT. THE UPSHOT OF THE ABOVE DISCUSSION IS THAT THE DECISION OF THIS COURT IN CI T VS. MADHYA BHARAT ENERGY CORPN. (SUPRA) IS NOT OF ANY ITA NO. 202/MDS/2016. :- 11 -: ASSISTANCE TO THE REVENUE AS FAR AS THE ISSUE IN TH E PRESENT CASE IS CONCERNED. IN THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT TH E JUDGMENT OF DELHI HIGH COURT IN THE CASE OF MADHYA BHARAT ENERGY CORP ORATION LTD (SUPRA) CANNOT BE CONSIDERED AS LAYING DOWN THE COR RECT LAW. THUS, WE ARE OF THE OPINION THAT NON ISSUE OF NOTICE U/S. 143(2) OF THE ACT INVALIDATES THE JURISDICTION TO MAKE THE ASSESSMENT . WE THEREFORE QUASH THE ASSESSMENT DONE ON THE ASSESSEE FOR THE I MPUGNED ASSESSMENT YEAR. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS A LLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 11TH DAY OF JAN UARY, 2017, AT CHENNAI. SD/- ( . ) (G. PAVAN KUMAR) $ % / JUDICIAL MEMBER SD/- ( . ) (ABRAHAM P. GEORGE) & % / ACCOUNTANT MEMBER +$ / CHENNAI , / DATED:11TH JANUARY, 2017. KV - '%./ 0/% / COPY TO: 1 . / APPELLANT 3. 1% () / CIT(A) 5. / 45 '%6 / DR 2. '# / RESPONDENT 4. 1% / CIT 6. 57 8$ / GF