Income Tax Officer -1, Sagar V. Shri Jhaman Das Panjwani, Sagar

ITA 208/JAB/2018

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 1200 (ITAT-JABALPUR)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 08-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR GUPTA
• Keywords: Opportunity of being heard; Assessment record; Reassessment proceedings; Set aside
• Section: 147; 144; 143(3); 142(1); 153A; 205; 143(2); 139(4)

Judgement Text

1 | P a g e IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR (through web-based video conferencing platform) BEFORE SHRI SANJAY ARORA, HON‟BLE ACCOUNTANT MEMBER & SHRI MANOMOHAN DAS, HON'BLE JUDICIAL MEMBER I.T.A. Nos. 205 to 208/JAB/2018 (Asst. Years: 2008-09 to 2011-12) C.O.Nos. 19 to 22/JAB/2018 (arising out of I.T.A. Nos. 205 to 208/JAB/2018) (Asst. Years: 2008-09 to 2011-12) Appellant by : Shri Rajesh Kumar Gupta, Sr. DR Respondent by : Shri Dhiraj Ghai, FCA Date of hearing : 28/04/2022 Date of pronouncement : 26/07/2022 O R D E R Per Bench The sole issue arising in this set of four Appeals and corresponding Cross Objections (COs), raised by the Revenue and the Assessee respectively, is the maintainability of the assessments for the relevant years in view of the alleged Income Tax Officer, Ward-1, Sagar (M.P.) vs. Jhaman Das Panjwani, Prop: M/s. Lakhmichand Jhamandas, Naya Bazar, Sagar (M.P.) [PAN : ACQPP 3629 Q] (Appellant) (Respondent) Jhaman Das Panjwani, Prop: M/s. Lakhmichand Jhamandas, Naya Bazar, Sagar (M.P.) [PAN : ACQPP 3629 Q] vs. Income Tax Officer, Ward-1, Sagar (M.P.) (Appellant) (Respondent) ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 2 non-issue of notice/s u/s. 143(2) of the Income Tax Act, 1961 („the Act‟ hereinafter). This is for the reason that the Commissioner of Income Tax (Appeals)-1, Jabalpur („CIT(A)‟, for short) has vide the impugned orders dated 16/7/2018 held the same as bad in law and, consequently, not decided on the other issues raised in appeal by the assessee before him. The background facts 2. The facts of the case leading to the controversy at hand are as follows: Notice u/s. 148(1) was issued in these cases on 17/7/2014 (for AY 2010-2011) and 28/7/2014. The service thereof in the normal course, being sent per registered post, is not in dispute. This aspect was not only clarified by us from the parties during hearing, but stands also verified from the assessment record. The assessee did not furnish any return of income in response thereto nor consequently requested for a copy of reason/s recorded u/s. 148(2). The Assessing Officer (AO), accordingly, proceeded in the matter of reassessment, issuing notice u/s. 142(1) on 20/8/2015 for all the years. The relevant dates which tabulated below for clarity: Table-1 Assessment Year Date-1 Date-2 2008-09 30/07/2014 20/08/2015 / 21/08/2015 2009-10 30/07/2014 20/08/2015 / 21/08/2015 2010-11 30/07/2014 20/08/2015 / 21/08/2015 2011-12 30/07/2014 20/08/2015 / 21/08/2015 Date-1 : Date of service of notice u/s. 148(1) Date-2 : Date of issue/service of notice u/s. 142(1) During the course of assessment proceedings, the assessee, represented by his son, Shri Khem Chand Panjwani, and Accountant, Shri Pankaj Kukreja, attended proceedings, being on, and in parallel, for all the years under reference. This fact is duly recorded in the identically worded entries in the order-sheets maintained by ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 3 the AO for all the years, which is further signed by both the AO and Shri Lakhmi Chand Panjwani. The said entry dated 03/9/2015, which is in Hindi, and identical for all the years, reads as under: Table-2 03/09/2015 श्री लखमी चन्द पंजवानी करदाता के पुत्र एवं श्री पंकज कुकरेजा, लेखापाल उपस्थथत हुये। थथगन हेतु अनुरोध ककया गया। तद् अनुसार प्रकरण कदनांक 14/09/2015 को स्नयत ककया जाता है। धारा 148 के अनुपालन में पत्र प्रथतुत ककया गया। Sd/- Sd/- लखमीचंद पंजवानी ITO Translated in English, it would be read as: Table-3 03/09/2015 Shri Lakhmi Chand Panjwani, son of the assessee, attended along with Shri Pankaj Kukreja, Accountant, and requested for adjournment for 14/09/2015. Submitted letter in response to notice u/s. 148. Sd/- Sd/- Lakhmi Chand Panjwani ITO For AY 2008-09, however, the last sentence has been struck off, but again ticked ( ), implying ignoring the strike-off and restoring the content struck off. Neither, however, the cutting (striking off) nor the ticking is initialled by the AO/Sh. Panjwani, i.e., the signatories, with a view to authenticate it. Further, this has been only for one year (i.e., AY 2008-09), while the entry dated 03/09/2015 for the other three years remains as it is. The AO proceeded with the assessment, completing it in all the cases on 17/3/2016, making additions, principally on account of undisclosed income. The assessee appealed before the first appellate authority, i.e., the ld. CIT(A), on 18/4/2016. An additional ground was raised later (date not specified), raising the issue of non-issue of notice u/s. 143(2), which reads as under:- ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 4 Table-4 “Considering the fact that the reassessment proceeding has been completed without issuing notice under section 143(2) hence the assessment order dated 16/03/2016 is bad in law”. * Correct date is 17/03/2016 This Ground stands raised by the assessee on the strength of the letter/s dated 03/09/2015, bearing dak receipt dated „03/09/2015‟ for each year, which reads as under, and on the basis of which, therefore, the assessee claims compliance of notice/s u/s. 148(1): Income Tax Officer, Ward-1, Sagar (MP) Reg: Shri Jhaman Das Panjwani, Prop. of M/s. Lakhmi Chand Jhaman Das, Naya Bazar, Sagar (MP) PAN : ACQPP 3629 Q Sub:- Your notice u/s. 148 dated 17/07/2014 in the case of above assessee for A.Y. 2008-09. Respected Sir, The above named assessee had received the aforesaid notice requiring him to file a return of his income in compliance to notice issued u/s. 148. In this regard it is submitted that during the survey proceedings by the sales tax department at the premises of the assessee, several documents were seized & the copies of the same have not been made available to the assessee. These documents relate to disclosed & undisclosed sales of the assessee and the figure of sales as assessed in the assessment order have been inflated many folds. Thus, assessee is not able to file a return of income disclosing actual income earned by him. In this situation, your honour are hereby requested to kindly consider the return originally filed by the assessee as return filed in compliance to notice u/s. 148. Thanking you, Yours Faithfully, For:- M/s. Lakhmi Chand Jhaman Das Sd/- (Jhaman Das Panjwani) Proprietor ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 5 Place: Sagar Date: 03/09/2015 The said Ground arising out of the assessment order, was admitted by the ld. CIT(A). He called for the remand report from the AO who (being the same person passing the assessment order) stated therein that Shri Khemchand Panjwani had on 03/09/2015 attended the proceedings and stated that the letter to the effect that the return as originally filed be treated as the return/s of income in response to the notice u/s. 148(1) is being furnished in some time by his counsel, and which resulted in the order-sheet entry dated 03/09/2015 stating of compliance of notice u/s. 148(1). No such letter was, however, filed, i.e., as promised, and which also explained the subsequent cutting/strike-off. No return, thus, having been filed in response to the notice u/s. 148(1), no notice u/s. 143(2) was issued. The mention of the assessments as u/s. 147 r/w s. 143(3) is thus a mistake, which is thus to be regarded as u/s. 147 r/w s. 144. The assessee found favour with the ld. CIT(A) on the basis of the letter/s dated 03/09/2015 aforesaid, coupled with the order-sheet entry/s by the AO. Reliance stands placed on specific case-law (by the ld. CIT(A)) holding an assessment without issue of notice u/s. 143(2) as bad in law. Arguments 3.1 No order-sheet entry could arise, Shri Ghai, the ld. counsel for the assessee, would argue, on the basis of a presumption or even an assurance. Why, again, the said assurance having been not kept, did the AO not question the assessee in the matter, even as there were hearings after 03/09/2015? Why did he, again, not make any mention thereof in his order/s, which is sub silentio thereon. 3.2 Shri Gupta, the ld. Sr. DR, would, on the other hand, contend that no cognizance could be given to the letter/s dated 03/09/2015 inasmuch as the same is not initialled by the receipt clerk. He, on an enquiry by the Bench, confirmed that there was no such letter on the assessment record (for all the years), though, ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 6 however; the hearing taking place virtually, was called upon to produce the assessment records for verification, and which was done, confirming that no such letter forms part of the assessment record. In fact, he would continue, even so, the letter/s being admittedly furnished on 03/09/2015, i.e., much after the expiry of the 30 day period allowed by the AO per the sec. 148(1) notice, cannot in any case be regarded as in compliance of the notice u/s. 148(1). 3.3 Shri Ghai would in rejoinder submit that it is the regular practice in many stations, as in Bhopal, where receipt is given only by way of a „stamp‟, which is not signed/initialled by the receipt clerk. Further, a return filed beyond the period allowed by the AO, which is the minimum prescribed period of 30 days, would not make the return non-est, but a belated return, for which (default) interest stands provided for in law u/s. 234A, even as noted by the Tribunal in ITO v. Shri Krishna Academy (in ITA Nos. 565, 566 & 568/Lkw/2011, dated 28/5/2013), reading para 8 thereof. He, however, could not answer the query by the Bench as to if the law provided for filing the return u/s. 148(1) belatedly, as it does for a return u/s. 139(1), or if the AO had the power to extend the time period for furnishing the return u/s. 148(1) and, if so, to what extent; the returns in the instant cases being admittedly filed (i.e., assuming so) after 13-14 months after the issue u/s. 148(1). The Bench also queried him on the legal consequence of the non- mention of the date of filing the return of income in the letter dated 03/09/2015 being relied upon by the assessee. He would submit that the same would be of no consequence as the assessee for each year had filed only one return, which is therefore referred to as the original return in the letters. In any case, the same must be regarded as a substantial compliance of the notice u/s. 148(1). To another query by the Bench with reference to the words „so far as may be‟ occurring in s.148(1), as to the prejudice caused to the assessee in the absence of a notice u/s. 143(2), he would submit that it was not a question of prejudice, but of following the prescribed procedure. On being further asked on their import, considering that the ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 7 assessee „files‟ the same return as originally furnished, already on record of the Revenue, and only with reference to which it believed escapement of income from assessment, and to make which assessment the necessary jurisdiction stands assumed by the issue of valid notice u/s. 148(1) in time, he would clarify that that was a return u/s. 139(1), while the one being filed now (on 03/09/2015) is u/s. 148(1), only on verification of which would the AO be able to determine the extent to which income had not been disclosed by the assessee and, accordingly, remained to be assessed and, thus, brought to assessment. On a query by the Bench to Shri Gupta as to the import of the decision in CIT vs. Panchvati Motors (P.) Ltd. [2011] 59 DTR 289 (P&H), being relied upon by the Revenue, he would admit the same to be on service of the notice u/s. 143(2), which is not the subject matter of dispute in the instant case/s. Hearing was closed at this stage, reserving the order. 4. We have heard the parties, and perused the material on record. We shall proceed by delineating the issues discerned as arising in the instant case, and in the order they do: A. Whether there has been a compliance of the notice u/s. 148(1) in law and in the facts and circumstances of the case? B. Whether it was imperative for the AO to have issued notice u/s. 143(2) in the instant case? C. Whether, the notice u/s. 143(2) being a non-statutory form, with no defined language, could the extension of opportunity to the assessee vide any letter or notice, requiring him to explain or substantiate aspects of his return, by the AO, be regarded as a de jure notice u/s. 143(2)? D. The legal consequence/s of the non-issue of notice u/s. 143(2). Issue # 1 4.1 Qua issue A, in our considered view, there has been no compliance of the notice u/s. 148(1), which provision reads as under, in the instant case/s: ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 8 Chapter-XIV- Procedure for Assessment Issue of notice where income has escaped assessment. 148. (1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in such notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139: (emphasis, ours) The law, thus, makes it abundantly clear that the period within which the assessee is to furnish a return of income as required to by the notice u/s. 148(1), is that as specified in the said notice itself. The words „not being less than 30 days‟ following the words „within such period‟, stand omitted by Finance (No.2) Act, 1996, with retrospective w.r.e.f. 1.4.1989, so that with effect from that date, a notice u/s. 148(1) would be valid even if it specifies a period less than thirty days, which is normally the time allowed, as indeed, as confirmed by the parties, is in the instant case/s. The reason for the said prescription is not far to seek. It is only after a return is furnished by the assessee that the AO could proceed further in the matter. The assessment process get stalled for the time, and the next course to be adopted by the AO stands to be decided only after this period, i.e., as specified in the notice u/s. 148(1). That is, it is the assessee‟s response to the said notice, complying with it or not, that determines the subsequent procedure, which cannot possibly be kept in abeyance, awaiting indefinitely for the assessee‟s response, that he may one day, perhaps, respond by filing the return of income. Even as the terms of the notice are clear, this explains the need to observe a timeline, qua which there is no ambiguity in the language of the provision, which forms the basis of the notice, itself, which makes it further clear that the incidences to the filing of this ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 9 return are, so far as may be, the same as provided for a return required to be furnished u/s. 139. What, then, one may ask, is the controversy about? Once therefore the time period specified in the notice u/s. 148(1) stands expired, as in fact is in the instant case/s, it cannot be in law said that there has been a compliance of the notice u/s. 148(1). This position cannot be, strictly speaking, reversed in time even if the assessee chooses to file the return subsequently. The AO in such a case would require expressly stating of admission of the return furnished in response to the notice u/s. 148(1) or issue a notice u/s. 143(2), implying the same and, in either case, concomitant extension of time allowed thereby. This stands stated succinctly in CIT vs. Rajeev Sharma [2011] 336 ITR 678 (All), followed in Pr. CIT vs. Jai Shiv Shankar Traders Pvt. Ltd. [2016] 383 ITR 448 (Del.), relied upon by the Tribunal in Pratap Rai Ahuja v. Dy. CIT (in ITA Nos. 103 – 105/Jab/2012, dated 24/6/2016 / copy on record at PB pgs. 22-27), relied upon by the ld. CIT(A): „The plain reading of section 148 of the Act further reveals that within the statutory period specified therein, it shall be incumbent to send a notice u/s. 143(2).‟ (emphasis, supplied) The cited decisions, thus, favour the view being canvassed in this order. To say, therefore, that the return of income furnished after the expiry of the time specified therein is in compliance of the notice u/s. 148(1) is a contradiction in terms. That, plainly, would render the prescription of time per the sec. 148(1) notice as without meaning. It is trite law that a word may rather have affect than not, and that no word of the statute can be regarded as superfluous, even as we have explained the basis in law of the said prescription. Further still, an interpretation that makes the machinery of the Act workable, giving effect to the legislative intent, that is to be adopted; rather than that which defeats it (L. Hazari Mal Kuthiala v. CIT [1961] 41 TR 12 (SC)). The law contemplates an orderly completion of the assessment, balancing the interest of the assessee (tax payer) and the Revenue. There has been ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 10 a clear violation of the terms of the notice u/s. 148(1), and the AO cannot, as afore- said, keep the proceedings open-ended. Further, there is no provision in law where-under the said return can be said to have been filed, and neither could Shri Ghai specify any on being asked during hearing, and neither does the order by the Tribunal in Shri Krishna Academy (supra), relied upon, specify any. There is no gainsaying that a return to be valid in law has necessarily to be furnished under a specific provision of law, and which includes the filing of a return belatedly, which can only be under a statutory right to that effect. Further, without doubt, notice u/s. 143(2) contemplates a valid return; an invalid return having no existence in the eyes of law. Sure, we clarify, as also apparent from the foregoing; the law not providing for an outer time-limit, and the time period to be specified in the notice u/s. 148(1) being at the discretion of the AO issuing the notice 148(1), it is within his competence to extend the said time limit where a return is filed in response to a notice u/s. 148(1) beyond the time specified therein. We thus clarify that we are not in any manner suggesting that this time period is sacrosanct or absolute, but is subject to a conscious decision by the AO, who is charged by law to frame an assessment satisfactorily, by making proper enquiries and verification, appraising the evidences relied upon or gathered, and applying his mind to the various issues arising or discerned, so as to bring the escaped income to tax, and within the time available under law. The extension of the time period is the preserve and the prerogative of the AO, who may, at his discretion, exercise it in favour of the assessee, which all depends on the facts and circumstances of a given case, including, for example, the difficulty that may be explained to him by the assessee in complying therewith; the time initially allowed; the stage of the proceedings at the time the assessee seeks to file the return he was required to, etc. That, however, is very different from saying that this discretion is justiciable or open to review by any other authority. That is, the extension of the said time falls within the ambit of the power of assessment of the assessing authority which, it is trite law, is plenary (viz. CIT v. Greenworld Corporation [2009] 314 ITR 81 (SC); J.K. Synthetics v. ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 11 CBDT [1972] 83 ITR 335 (SC)) and cannot be interfered with even by the Board (s. 119). It is thus not for the assessee to insist, i.e., as a matter of right, that the AO treat the said return as one u/s. 148(1). The reassessment proceedings, it is to be appreciated, are in any case for the benefit of the Revenue, and the AO is to take a conscious decision in the conspectus of the case. That is, is purely a procedural aspect, which does not bestow/confer any right to the assessee, who may, in the given case, do so merely to derail the assessment process, as we observe to be in the instant case, which is only an abuse of the process of law. It is, we may also clarify, equally open to the AO to, without extending the time limit, take cognizance of the said return inasmuch as it has informative/evidentiary value. As explained by the Apex Court in Pooran Mal v. DoI (Inv.) [1974] 93 ITR 505 (SC), as indeed per it‟s later decisions, as in Pratap Singh (Dr.) & Ors. v. DoE [1985] 155 ITR 166 (SC), the test of admissibility of evidence is it‟s relevancy, so that even material gathered in an illegal search could be used for framing an assessment. Likewise, the said return/s, though without any legal basis and, thus, invalid, can yet furnish material for the AO for the purpose of assessment. This is being stated toward clarifying the matter, even as there has been no such user in the instant case. Why, the assessee does not even mention the acknowledgment number/ward of the return filed earlier, much less a copy thereof, which it wants to be treated as a return filed in response to the notice u/s. 148(1). 4.2 In the facts of the instant case, there is nothing on record to indicate; rather, not even contended, that the AO has extended this time period. There is in fact even no request by the assessee toward the same, which could be considered by the AO who, as explained, cannot keep the proceedings open-ended. We are conscious, when we say so, that there is no basis in law for the assessee to make such a request. The same stands though stated as it would be indicative of the assessee‟s intent, which the AO may consider, in the context and conspectus of the case. Where, one may ask, rather, is the need for time when the assessee is to rely ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 12 on his earlier return, not even filing one, but issuing a letter to that effect? Needless to add, such a request, to be valid, is to be made prior to the expiry of the time period specified in the notice u/s. 148(1) as, surely, the AO cannot be kept in limbo. Why, the AO may well have proceeded in the matter of assessment. Much less such a request, there is no response in this regard by the assessee for months together, even as the AO is to, as afore-stated, proceed with the assessment, which he does by issuing notice u/s. 142(1) on 20/8/2015, complied with by the assessee participating in the proceedings. The assessee suddenly awakes, as it were, over four hundred days (as against thirty days allowed per section 148(1) notice, more than sufficient under the circumstances) later, by claiming to file a letter, again, not with the AO, but in the Dak! It is precisely for this reason that we observed earlier of this as no more than an abuse of the process of law; rather, which is without the sanction of and de hors the law. Even the submission of this letter, i.e., dated 03/9/2015, claimed as in compliance of the notice u/s. 148(1) served on 30/7/2014, is in dispute. Why, he does not explain, was the same given in Dak, and not to the AO direct? What, we wonder, was secretive or covert about it, so as to be given surreptitiously in the Dak? This is particularly so when all other documents, as apparent from the assessment order and the order-sheet entries (PB pgs. 17-20), were given directly in the course of personal hearings, with the order-sheet entries being signed, in validation thereof, both by the AO and the assessee/assessee‟s representative. Rather, 03.9.2015 was itself the date of hearing, which was attended, for and on assessee‟s behalf, his son and Accountant, who represented him throughout out in the proceedings. The contents of the letter also leave much to be desired. As afore-stated, the same, i.e., the letter conveying the assessee‟s reliance on the same return, i.e., as filed earlier, in response to notice u/s. 148(1), must state the acknowledgement number, date and the ward/circle with which the said return had been filed, which only would make it complete, preferably also enclosing an attested copy of the said return, so as to eliminate any scope for any doubt or ambiguity. This, to our mind, ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 13 only would be in due compliance of the notice u/s. 148(1), the time aspect apart that is, and in discharge of the statutory obligation cast on the assessee u/s. 148(1), which is thus to be given due regard. The assessee may have shifted his place of business/residence, or his case may have been transferred to another ward/circle during the intervening period, and the like, so that the earlier return may have been filed at another station, or with another Ward, etc. Why, he may have filed more than one return, i.e., revising the earlier one, or the same having been subject to reassessment. This of course may not be applicable for the years for which the Revenue has collated all the data on it‟s central server, so that a mere login of the assessee‟s PAN would furnish the AO all the relevant information qua an assessee for any particular year. In which case, again, though, there would arise a need for specification in case of more than one return having been filed. As it appears, there has been no such collation at the relevant time (03.9.2015). As apparent from the facts of the case in Pratap Rai Ahuja (supra), relied upon by the ld. CIT(A), the AO specifically asked the assessee to state the particulars of the return filed earlier, and which the assesse does vide his reply dated 22/11/2004, even as he denied having received any notice u/s. 148, clarifying thus the absence of the return particulars with the AO, which cannot be presumed. Sure, the AO in the instant case could as well seek details (i.e., assuming the filing of the letter); the question however is the nature of the obligation cast on the assessee, and if the same stands discharged. Lastly, is the aspect of the letter/s dated 3.9.2015 having been given in the Dak (receipt counter), reference to which stands already made earlier, so that this discussion is in continuation thereof. The said letter/s, as afore-noted, is not on the assessment record. In our clear view, the submission of the letter/s to the AO being disputed, cannot, in the absence of any receipt number and/or initial (of the receipt clerk), along with the stamp of receipt, be regarded as having, as a fact, given in the Dak. There is nothing brought on record by the assessee to exhibit that this was the practice being adopted in the relevant office at Bhopal – which we must say, is, ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 14 i.e., assuming so, a very precarious, irresponsible and irregular practice, at the relevant time (September, 2015). That, rather, is all the more reason for the assessee to have acted cautiously, with circumspection, furnishing the returns/letter/s either directly to the AO or insisted on the same being duly receipted at the receipt counter. A proper receipt is in fact the only possible reason for submitting the return/s in the Dak, which gets defeated and, besides, irrelevant in the instant case/s as the order-sheet entry is made out by the assessee/ assessee's representative on each date of hearing. The assessee, on the contrary, acts, as it were, with disdain. There is, further, nothing to show/exhibit that the assessee indeed brought this fact, i.e., about having chosen to and indeed filed the letter/s dated 03.9.2015 in compliance of the notice u/s. 148(1) dated 30/7/2014, albeit in the Dak, on that date, to the notice of the AO. Why? The AO is unaware of the same having been filed in the Dak, as claimed, so there is no question of his enquiring the assessee about it, nor indeed is he obliged to. We have already expressed our utter surprise over the manner of „compliance‟, which admittedly takes place 13-14 months after the service of the notice being complied with, which itself ought to have made an assessee more careful, circumspect and responsible, so that, even presuming it‟s acceptance by the AO, he ought to have furnished it directly, leaving no scope for any doubt or ambiguity. Further, the fact that the assessee attended proceedings on the said date (03.9.2005), makes this manner of furnishing the return/s all the more suspect and intriguing. Surely, it is not, as apparent, the case of the assessee, a regular assessee, with access to legal counsel, and assisted by authorized representatives, of he suddenly becoming conscious of his statutory obligations, and choosing to file a return over a year after the proceedings, with little bearing and consequence thereon, i.e., in effect, except that the AO would, in that event, be obliged to serve a notice u/s. 143(2), which usually marks the beginning of the process of assessment. It is clear that the assessee, in acting so, is acting on legal advice, and his purpose is oblique. All that an assessee with a honest intent and purpose, would, even if apprehending a ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 15 disadvantage in having not filed a return in response to notice u/s. 148, with none having been explained at any stage, would file the same upright, direct with the AO. What, after all, is the fuss about? There is no claim of the AO having refused to take the same on record. Rather, even so, the course for the assessee was to file a letter in the Dak, narrating the impracticability of filing the return before the AO, along with the return being sought to be furnished, or the copy of the one filed earlier, stating for the same being regarded as one in response to the notice u/s. 148(1), which in law is a separate and distinct return from that furnished u/s. 139. The filing of the letter/s dated 3.9.2015 by the assessee with the AO, on that date, or even later, its motivation apart, is, under the circumstances, completely unproved, if not disproved and, in our view, a subterfuge. We are conscious, when we say so, that the ld. CIT(A) has, based on the order-sheet entry/s dated 03/09/2015, given a finding as to the compliance of the notice/s u/s. 148(1) by the assessee on that date vide letter/s dated 03/09/2015. The letter dated 03/9/2015, on the basis of which compliance of section 148(1) notice is being claimed, was admittedly not given to the AO at the time of hearing. What, then, one may ask, forms the basis of the order sheet entry dated 03/9/2015? The untruth of the assessee‟s claim is proved by the said order-sheet entry/s itself. No wonder the receipt is, despite the said entry, disputed by the AO in the remand proceedings. Why, further, one may ask, was the same, assuming so, given in the Dak, particularly considering that the assessee attended the proceedings before the AO on that date (for all the years)? To no answer, and at any stage. Again, the letter is not, as afore-noted, properly receipted (in the Dak), which may be said to prove it‟s filing, as claimed. The finding by the ld. CIT(A) is thus untenable in the facts and circumstances, and for more than one reason. The AO, it needs to be appreciated, has nothing to gain by denying the receipt (of letter) where it is actually submitted. All that he may need to do is to issue and serve on the assessee – who is regularly attending proceedings before him, a notice/s u/s. 143(2). Two, he can, equally, while acknowledging the receipt of the letter, not admit the same ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 16 as in compliance of the notice u/s. 148(1), to no adverse consequence for the Revenue, for whose benefit the proceedings stand initiated, and proceed with the assessment, calling the information/material he requires for completing the assessment/s. That is, he has no reason to deny the receipt of the letter/s, the filing of which is not proved; and which, being crucial to the assessee‟s interest, as he claims, ought to have been satisfied upfront and without doubt. 4.3 We may at this stage, summarize our findings: a. There has admittedly been no compliance of notice/s u/s. 148(1) dated 28/7/2014 within the time period of 30 days allowed per the said notice/s, expiring on 30/8/2014; b. There is no request by the assessee for an extension of the said time at any time, much less before the expiry of the time allowed for compliance of the notice/s u/s. 148(1), even as the law does not bestow or confer any right to the assessee, either for such a request, much less to insist on the same, whenever filed, to be regarded as in compliance of the notice u/s. 148(1), or oblige the AO to so regard; c. There is no warrant for such a prayer in the instant case as the assessee intended to rely on the return as filed earlier; d. There is no provision in law under which a return could be filed after the time specified in notice u/s. 148(1) without of course the said time being extended, at his discretion, by the AO, which has admittedly been not; e. The AO proceeded with the assessment by the issue of notice u/s. 142(1) on 30/8/2015, followed by several hearings, last of which was on 17/3/2016, completing the assessment on 17/3/2016 itself; f. The filing of the return per letter/s dated 3.9.2015 is unproved, if not disproved; g. The letter/s dated 03.9.2015 is per se not in satisfaction of the requirement of the notice/s u/s. 148(1); and h. it is, in any case, not incumbent on the AO to, even where filed, admit the said letter (or return) in compliance to notice u/s. 148(1), and which he has not. It is easy to see that some of the findings are without prejudice to the others. ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 17 In view of the foregoing, in our considered view, there has been, both on facts and in law, no compliance of the notice/s u/s. 148(1) dated 17.7.2014/28.7.2014 by the assessee in the instant case/s. The impugned assessments are to be regarded as u/s. 147 r/w s. 144. Though the same stands clarified by the Revenue, admitting its‟ mistake, it is even otherwise well-settled that it is the correct legal position that is relevant, and not the view that the parties may take of their rights in the matter (CIT v. C. Parakh & Co. (India ) Ltd. [1956] 29 ITR 661 (SC); Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC)). 4.4 We may, next, meet the assessee‟s reliance on the decision in Shri Krishna Academy (supra). As afore-noted, there is no provision in law under which the said return of income can be filed, i.e., except where the time period specified in the notice u/s. 148(1) is consciously, i.e., either expressly or by necessary implication, as where he responds by issue of notice u/s. 143(2), in which case, without doubt, it would be a return u/s. 148(1). There is nothing in law which compels the assessing authority to accept the return filed beyond such time period as specified in the notice u/s. 148(1), or could possibly be, so that he has to in any case/ circumstance admit such a return as u/s. 148(1). To presume that the assessee can, without fetter, at his own whim and fancy, file a return of income at any time, is the fundamental flaw in the assessee‟s case, an aspect which does not find reference or deliberation in the Tribunal‟s order. This is as it, in clear disregard of the provision of section 148(1), renders the specification of time therein as meaningless, which, even otherwise impermissible, could not possibly be the legislative intent. The validity of the return u/s. 148(1) is to be found in s. 148 itself, or any other provision regulating the filing of a return there-under, and not under the interest charging provision. The said order is even otherwise distinguishable on facts inasmuch as we find no extension of time period by the AO in the facts of the case and, two, of no letter/s having been indeed filed on 03/09/2015 with the AO. With regard to reliance on s. 234A, sub-section (1) ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 18 thereof speaks of interest on late or not furnishing of the return u/ss. 139(1), 139(4) or 142(1). Section 234A(3) is relevant for our purpose, which reads as under:- Interest for defaults in furnishing return of income. 234A (3) Where the return of income for any assessment year, required by a notice under section 148 or section 153A issued after the determination of income under sub-section (1) of section 143 or after the completion of an assessment under sub-section (3) of section 143 or section 144 or section 147, is furnished after the expiry of the time allowed under such notice, or is not furnished, the assessee shall be liable to pay simple interest at the rate of one per cent, for every month or part of a month comprised in the period commencing on the day immediately following the expiry of the time allowed as aforesaid, and,- (a) where the return is furnished after the expiry of the time aforesaid, ending on the date of furnishing the return; or (b) where no return has been furnished, ending on the date of completion of the reassessment or recomputation under section 147 or reassessment under section 153A, on the amount by which the tax on the total income determined on the basis of such reassessment or recomputation exceeds the tax on the total [income determined under sub-section (1) of section 143 or on the basis of the earlier assessment aforesaid. True, the section empowers the AO to charge interest where the return is furnished after the expiry of the time allowed under, inter alia, a notice u/s. 148. The same, however, can only mean a valid return in law. By no stretch of imagination can it mean a return that is not valid in the eyes of law. We have already clarified that it is within the competence of the AO to extend the time limit specified in notice u/s. 148(1), so that where he so does, it is a valid return in law, albeit liable for charge of interest for the period of delay. This is the only import of the section 234A, on which reliance is placed to contend, in effect, as a proposition, that the time limit specified in sec. 148(1) is to no consequence and the assessee can file the return in response to notice u/s. 148(1) at any time till the completion of the assessment. What, in our view, is being lost sight of is that interest u/s. 234A(3) is also leviable where no return is filed in response to the notice u/s. 148(1) (as we have found in the instant case). That is, even where there is admittedly no compliance of the ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 19 notice u/s. 148(1). From the stand-point of the provision (for charging interest), the two events, i.e., compliance or non-compliance of notice u/s. 148(1), are at par, i.e., of little consequence, as in either case interest is chargeable; the only difference being the terminal point in time up to which the interest is to be charged. How could then it be said that the said provision (s. 234A) be regarded as validating a return furnished in response to notice u/s. 148(1) beyond the time specified therein and without AO admitting the said return as one u/s. 148(1)? That would rather be beyond the purview, scope and competence of s. 234A itself, and neither does it, in our view, in any manner suggest so, i.e., of a return which is without the sanction or authority of law? Rather, such a case would be regarded as a case of no return, and interest chargeable, as provided in s. 234A(3), up to the date of completion of the reassessment. We have already clarified that a return furnished beyond such time is a valid return u/s. 148(1) where the same stands admitted as such by the assessing authority, and that the law does not, as it does u/s. 139, confer any right to the assessee in the matter of filing the return belatedly. Rather, the return filed without an extension of time is without any legal basis. In the facts of the instant case/s, we have found as a fact that there has been, in the facts and circumstances, no filing of the return, much less one admitted by the AO. The said decision, thus, would be of no assistance to the assessee. 4.5 We may next consider the decision by the Tribunal in Pratap Rai Ahuja (supra), relied upon by the ld. CIT(A), copy of which is also placed at pages 22-27 of the assessee‟s paper-book (PB), even as the same was not referred to or adverted to by Shri Ghai during hearing. This is as the matter is legal and, besides, the impugned order is based thereon. In the facts of that case, the assessee denied service of notice u/s. 148(1) dated 23/03/2004 (for AY 1999-2000) – not in dispute in the instant case, though received the subsequent notice u/s. 142(1) in November, 2004, responding thereto, even as the issue of non-service of notice u/s. 148(1) was raised in the reassessment proceedings. Where, then, one may ask, is the question ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 20 of the assessee complying with the notice u/s. 148(1), or even the AO, in view of the same, issuing of notice u/s. 143(2) of the Act? The assessee specifically states this to be the reason for not being able to file return by the time allowed, i.e., 25/04/2004. The facts of the said case are thus materially different, and have no correspondence with that in the instant case. Rather, we observe no finding by the Tribunal qua the non-service of notice u/s. 148(1), and it proceeds to decide qua the validity of the assessment on the basis of non-issue of notice u/s. 143(2), which could not possibly be issued by the AO in view of the admitted non-filing of the return in response to the notice u/s. 148(1), which the assessee claims to have not received! For AY 2000-01, the Tribunal, without discussing the facts for that year, follows it‟s orders for AY 1999-00, so that the presumption would be that the facts are the same. For AY 2001-02, the order of the first appellate authority is set aside by the Tribunal, and the matter restored to the file of AO for fresh adjudication. How, one wonders, then, would the said decision be of any assistance to the assessee in the facts and circumstances of the case. 4.6 In Pr. CIT v. Shri J.S.S. Traders (P.) Ltd. [2016] 383 ITR 448 (Del), relied upon by the Tribunal in Pratap Rai Ahuja (supra), which in turn stands relied on by the ld. CIT(A); rather, supports the view expressed, based on the clear language of the provisions of law, i.e., where a return stands filed by the assessee within the time specified in notice u/s. 148(1), it shall be incumbent on the AO to issue a notice u/s. 143(2). In the facts of the instant case, the assessee has admittedly not filed the return within the time specified in the notice u/s. 148(1). The ld. CIT(A) has failed to consider this aspect and, thus, his order is inconsistent with the decision he purportedly follows or places reliance on. His order does not address the aspect as to how the letter dated 03/09/2015, even assuming it is filed, could be regarded as in response to notice u/s. 148(1) dated 30/07/2014 allowing time of 30 days to furnish the return of income? That apart, we have found that no letter stands furnished to the AO on 03/09/2015 or even later. ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 21 4.7 Before parting with this order, we may clarify that our adjudication of the Revenue's appeals and the assessee's COs, does not attempt the answer only the grounds raised thereby, but extends to the issues discerned as arising for adjudication by us, on the basis of which the parties were accordingly heard. The same is in agreement with Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963, even as the same are also not exhaustive of the powers of the Tribunal (Hukamchand Mills Ltd. vs. CIT [1967] 63 ITR 232 (SC)). 4.8 In sum A valid return is, to our mind, a pre-requisite, a jurisdictional fact for issue of notice u/s. 143(2), absent (or contested) in the instant case. There is no dispute on this legal proposition, toward which, reliance, apart from the clear provision of the law itself (refer: CIT v. Calcutta Knitwears [2014] 362 ITR 673 (SC)), is made on the decisions in Rajeev Sharma (supra) and Sh. JSS Pvt. Ltd. (supra), relied upon by the Tribunal in Pratap Rai Ahuja (supra), relied upon by the ld. CIT(A) himself. Reference here be also made to a recent decision in Asha Agarwal and Others vs. Asst. CIT (in ITA Nos. 128-130/Alld/2017 dated 29/4/2022). The matter, as we have found, has two aspects to it. One, is the filing of the return in time, as a return beyond time cannot, unless the time is extended by the AO, regarded as valid. Much less than extended, the filing of the return/s is seriously disputed in the instant case. The order sheet entry/s, that forms the fulcrum of the assessee‟s case, stands disproved by the very „fact‟ of the letter/s dated 03/09/2015 being not given to the AO, but admittedly in the Dak, which is itself wholly unproved. If the assessee really intended to file the return/s, even if later, he could have done so at any time during the proceedings, both before or after 03/09/2015, furnishing the same (or letter/s to that effect) to the AO, who would record the same in the order-sheet entry. Insistence on the part of the assessee for a return/letter being regarded as in compliance of the notice u/s. 148(1) even where „filed‟ far beyond the time specified therefor, has no basis in ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 22 law, which would render the specification of the time limit u/s. 148(1) meaningless. As such, even assuming the filing of the letter dated 03/9/2015 would be of little consequence. There is no vested right in procedure, and no prejudice stands shown as caused – the assessee only relying on his earlier return/s, available with the Revenue and considered in recording reasons u/s. 148(2), in proceedings which are even otherwise for the benefit of the Revenue. The second aspect is the manner of the alleged compliance, which leaves much to be desired; rather, is only suspect, motivated, as apparent, to challenge the proceedings later for want of a notice u/s. 143(2). The AO, it may be appreciated, would have, where so, verily issued the a notice u/s. 143(2); it having little bearing on the assessment proceedings or the income as finally assessed, except that the assessment would be u/s. 147 r/w s. 143(3), as claimed, admittedly mistakenly though, instead of u/s. 147 r/w s. 144, as held by us. No prejudice stands shown, nor even claimed. The law, which does not concern itself with trivia (De Minimis), is, upon abuse of its process, being itself reduced to one such. 5. Decision We, accordingly, find no merit in the assessee‟s case, which found favour with the ld. CIT(A), and hold the impugned order/s as u/s. 147 r/w s. 144, as there has been, on facts and in law, no compliance of the notice/s u/s. 148(1) for the AO to have issued a notice u/s. 143(2) in verification of the return filed thereunder. The other legal issues (see para 4) are not being dilated upon in view their inconsequentiality and, besides, were not argued. The same are, thus, kept open, and the occasion for the same shall arise in case our legal and factual findings are, on challenge, reversed or set aside by a higher appellate forum. As noted at the beginning of this order, the ld. CIT(A) has, on acceptance of the legal aspect, not decided the assessee‟s appeals on merits (of the adjustments to the assessed income). The matter, accordingly, is restored to his file for deciding for Grounds 1 to 4 (3, for AY 2011-12) of the assessee before him in accordance with law and ITA Nos. 205-208/JAB/2018 (AYs. 2008-09 to2011-12) C.O.Nos. 19-22/JAB/2018 Jhaman Das Panjwani 23 after allowing the parties before him a reasonable opportunity of being heard. We decide accordingly. 6. In the result, the Revenue‟s Appeals are allowed and the assessee‟s Cross Objections are allowed for statistical purposes. Order pronounced in open Court on July 26, 2022 S d/- S d/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: 26/07/2022 vr/- Copy to: 1. The Appellant: ITO, Ward-1, Sagar (M.P.) 2. The Respondent: Jhaman Das Panjwani, Prop: M/s. Lakhmichand Jhamandas, Naya Bazar, Sagar (M.P.) 3. The Principal CI T-1, Jabalpur (MP) 4. The CI T( Appeals)-1, Jabalpur (MP) 5. The Sr . D.R., I TAT, Jabalpur 6. Guard File. / / True Cop y //