Shri Subrata Kumar Saha, Agartala V. Assistant Commissioner of Income Tax, Circle-Agartala, Agartala

ITA 22/GTY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6079 (ITAT-GUWAHATI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K BHARDWAJ
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Non compliance; Procedural lapse; Assessment record; Block assessment; Revised return; Documents seized
• Section: 271(1)(c); 143(3); 142(1); 153A; 32; 145; 148; 132; 10; 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 20 - 25 / GAU / 2019 ITA NO.300/GAU/2018 ASSESSMENT YEARS :2010-11 TO 2015-16 ASSESSMENT YEAR: 2010-11 SRI SUBRATA KUMAR SAHA, C/O SHRI RANJIT KUMRA SAHA OLD THANA ROAD, BANAMALIPUR, NR. MAHANAM ANGAN, AGARTALA, TRIPURA- 799001 [ PAN NO.AUQPS 2648 E ] V/S . ACIT, CIRCLE- AGARTALA, AGARTALA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SANJAY MODY, FCA /BY RESPONDENT SHRI A.K. BHARDWAJ, ADDL. CIT-DR /DATE OF HEARING 12-07-2019 /DATE OF PRONOUNCEMENT 02-08-2017 / O R D E R PER BENCH:- THE INSTANT BATCH OF SEVEN CASES FOR ASSESSMENT YEA R 2010-11 TO 15-16 PERTAINING TO A SINGLE ASSESSEE, SHRI SUBRATA KUMAR SAHA ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)- SHILLONGS SE PARATE ORDER(S) DATED(S) 27.03.2018, 26.02.2018 & 06.03.2018 PASSED IN CASE NOS. CIT(A)- SHG/10288, 10289, 10292, 10293, 10294, 10297 & 1028 8. RELEVANT PROCEEDINGS ARE U/S 153C R.W.S. 144 OF THE INCOME T AX ACT, 1961; IN SHORT THE ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 2 ACT IN FIRST FIVE CASES, U/S 144 IN ASSESSMENT YEA R 2010-11 AND U/S 271(1)(C) IN APPEAL ITA NO.300/GAU/2018; RESPECTIVELY. 2. LEARNED COUNSELS FIRST AND FOREMOST PLEA DURIN G THE COURSE OF HEARING IS THAT THE ASSESSEES APPEAL(S) ITA NO.20-24/GAU/2 019 RAISE IDENTICAL LEGAL ISSUE CHALLENGING INITIATION OF SEC. 153C PROCEEDIN GS ON ACCOUNT OF LACK OF ASSESSING OFFICERS SATISFACTION AS PRESCRIBED UNDER THE LAW. WE MAKE IT CLEAR THAT THE REVENUE HAS FAILED TO PLACE ON RECOR D SUCH A SATISFACTION THAT MONEY, BULLION JEWELLERY OR ANY OTHER SPECIFIED MAT ERIAL U/S 153C OF THE ACT BELONGING, PERTAINING, OR RELATING TO THIS ASSESSEE HAD BEEN FOUND OR SEIZED DURING THE COURSE OF SEARCH. WE NOTICE IN THIS BACK DROP OF FACTS THAT THE TRIBUNALS DECISION IN ITA NO.101/GAU/2018 IN ASSESSEES CASE ITSELF FOR ASSESSMENT YEAR 2009-10 DECIDED TODAY ITSELF HAS QU ASHED SIMILAR PROCEEDINGS FOR LACK OF THE ASSESSING OFFICERS VAL ID SATISFACTION AS UNDER:- 2. IT EMERGES DURING THE COURSE OF HEARING THAT FIR ST ASSESSEES APPEAL ITA NO. 101GAU/2018 AND SECOND ASSESSEES SIX APPEAL(S) IN ITA NO.102 TO 107/GAU/2018 CHALLENGE VALIDITY OF THE LOWER AUTHORITIES ACTION INITIATING SEC. 153C PROCEEDINGS IN ABSENCE OF ANY VALID SATISFACTION RECORDED THAT THE SE4ARCH IN ISSUE HAD LED TO ANY MONEY, BULLION JEWELLERY OR THE OTHER SPECIFIED ASS ETS AS BELONGING OR PERTAINING OR RELATING TO THEM. WE ARE TAKEN TO ASSESSING OFFICER S IDENTICAL SATISFACTION INITIATING THE IMPUGNED SEC. 153C PROCEEDINGS READING AS UNDER :- ORDER SHEET NAME OF THE ASSESSEE: SUBRATA KUMAR SAHA PAN: AUQPS 2648E ASSESSMENT YEAR:2009-10 DATE: 02-11-2015 A SEARCH AND SEIZURE WAS CONDUCTED IN THE PREMISES OF SUBRATA KUMAR SAHA ON 25.03.2015 . APPRAISAL OF THE CASE HAS ALREADY BEEN RECEIVED F ROM THE DDIT, GUWAHATI. IT IS A CONSEQUENTIAL CASE OF SUSHANTA SA HA . ACCORDINGLY A NOTICE U/S. 153A READ WITH SECTION 153C IS ISSUED TO THE ASSESS EE CALLING RETURN FOR THE ASST. YEAR 2009-10 BEING ONE OF THE SIX ASSESSMENT YEARS PRECEDING TO THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEA RCH WAS CONDUCTED) IN THE PRESCRIBED FORMAT AND BE DULY VERIFIED IN PRESCRIBE D MANNER AND TO BE SUBMITTED TO THE OFFICE OF THE UNDER SIGNED BY 03-12-2015 . SD/-ILL EGIBLE PREPARED BY DCIT SD/- DHARRMENDRA DEV BARMAN SD/- RITA SEN STENOGRAPHER (RITA SEN) OFFICE SUPERINTENDENT ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 3 O/O THE JC IT, AGARTALA ORDER SHEET NAME OF THE ASSESSEE: RANJIT KUMAR SAHA PAN: AULPS 6524 J ASSESSMENT YEAR:2009-10 DATE: 02-11-2015 A SEARCH AND SEIZURE WAS CONDUCTED IN THE PREMISES OF RANJIT KUMAR SAHA ON 25.03.2015 . APPRAISAL OF THE CASE HAS ALREADY BEEN RECEIVED F ROM THE DDIT, GUWAHATI. IT IS A CONSEQUENTIAL CASE OF SUSHANTA SA HA . ACCORDINGLY A NOTICE U/S. 153A READ WITH SECTION 153C IS ISSUED TO THE ASSESS EE CALLING RETURN FOR THE ASST. YEAR 2009-10 BEING ONE OF THE SIX ASSESSMENT YEARS PRECEDING TO THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEA RCH WAS CONDUCTED) IN THE PRESCRIBED FORMAT AND BE DULY VERIFIED IN PRESCRIBE D MANNER AND TO BE SUBMITTED TO THE OFFICE OF THE UNDER SIGNED BY 03-12-2015 . SD/-ILL IGIBLE PREPARED BY DCIT SD/- DHARRMENDRA DEV BARMAN SD/- RITA SEN STENOGRAPHER (RITA SEN) OFFICE SUPERINTENDENT O/O THE JCIT, AGARTALA THE ASSESSEE THEN QUOTE THIS TRIBUNALS DECISION IN THE VERY SEARCH RELATING TO THESE GROUP ENTERPRISE JOYRAM ENTERPRISE VS. ACIT IN ITA NO. 260 TO 266/GAU/2017 DECIDED ON 22.02.2018 QUASHING IDENTICAL PROCEEDING S IN ABSENCE OF A VALID SATISFACTION AS UNDER:- 2. AS THE FACTS AND ISSUE INVOLVED IN THESE APPEAL S ARE IDENTICAL, THEY ARE BEING DISPOSED OFF TOGETHER BY THIS CONSOLIDATED OR DER. 3. THE GROUNDS RAISED IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-2010 ARE AS UNDER:- 1. FOR THAT THE IMPUGNED ORDER PASSED BY THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD IN LAW, FACTS AND PROCEDURE. 2 FOR THAT THE LD. CIT(A) ERRED IN NOT QUASHING THE ORDER OF ASSESSMENT PASSED BY THE LD. AO WHICH IS BARRED BY LIMITATION. 3. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPH OLDING THE ORDER PASSED BY THE LD. AO AS THE INITIATION OF PROCEEDINGS U/S. 1 563C OF THE ACT IN THE INSTANT CASE IS WITHOUT SATISFACTION OF PRE-REQUISITE CONDI TIONS AND CONSEQUENTLY, WITHOUT JURISDICTION AND BAD IN LAW. 4. FOR THAT IN ABSENCE OF ANY VALID NOTICE U/S. 153 C BEING SERVED UPON THE APPELLANT ALSO, THE IMPUGNED ORDER IS WITHOUT JURIS DICTION AND BAD IN LAW. 5. FOR THAT THE IMPUGNED ORDER WAS PASSED BY THE LE ARNED CIT(A) IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD AND HENCE, THE SAME IS B AD IN LAW AND IS LIABLE TO BE QUASHED. 6. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CON FIRMING THE ARBITRARY ADDITION OF RS.33,873/-. 7. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CON FIRMING THE ARBITRARY ADDITION FOR RS.4,86,411/- 8. FOR THAT THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE CHARGE OF INTEREST U/S. 234C AT RS.5,948/- IS BAD IN LAW AND UNTENABLE. 9. FOR THAT YOUR APPELLANT CRAVES LEAVES OF YOUR HO NOURS TO TAKE ADDITIONAL GROUND OR GROUNDS AND/OR TO MODIFY ANY GROUND(S) OF APPEAL AT OR BEFORE THE TIME OF HEARING. ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 4 4. THE AR OF THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT HE WILL BE ARGUING GROUND NO.3 OF THE APPEAL, WHICH IS DIRECTED AGAINS T THE ASSESSING OFFICER INITIATING PROCEEDINGS U/S 153C OF THE ACT WHERE TH E PROCEEDINGS WERE INITIATED BY HIM WITHOUT RECORDING SATISFACTION WHI CH IS A PRE-REQUISITE CONDITIONS FOR INITIATING PROCEEDINGS U/S 153C OF T HE ACT AND WITHOUT WHICH THE AO DOES NOT DERIVE JURISDICTION TO MAKE ASSESSMENT AND, THEREFORE, THE ORDER PASSED BY HIM U/S 153C OF THE ACT IS WITHOUT JURISD ICTION AND BAD IN LAW. 5. HE SUBMITTED THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI SUSHANTA SAHA ON 25.0 3.2015. SHRI SUSHANTA SAHA IS A PARTNER IN THE ASSESSEE FIRM, FROM WHERE CERTAIN DOCUMENTS WERE FOUND AND SEIZED IN THE SEARCH OPERATION, THEREFORE , PROCEEDINGS U/S. 153C OF THE ACT WAS INITIATED AGAINST THE ASSESSEE FOR THE SIX YEARS UNDER CONSIDERATION AND CONSEQUENTLY AN ORDER CAME TO BE PASSED U/S. 153C R.W.S. 143(3) OF THE ACT ON 26.12.2016. THE PROCEEDINGS WA S STARTED U/S. 153C OF THE ACT WITHOUT RECORDING SATISFACTION OF THE NATUR E SPECIFIED IN SECTION 153C OF THE ACT AND, THEREFORE, IS INVALID AND BAD IN LA W. FOR THIS, HE PLACED RELIANCE ON THE DECISION OF HONBLE ANDHRA PRADESH HIGH COUR T IN THE CASE OF CIT VS. M/S SHETTYS PHARMACEUTICALS & BIOLOGICALS LTD. IN ITAT NO.662 OF 2014 DATED 26-11-2014 AS WELL AS DECISION OF HYDERABAD B ENCH OF THE TRIBUNAL IN THE CASE OF SHRI SATYANARAYAN AGARWAL VS ASST. CIT, ITA NO.1764/HYD/2013 , DATED 08.01.2016, WHERE IT WAS HELD THAT INITIATION OF PROCEEDINGS U/S 153C OF THE ACT WITHOUT RECORDING SATISFACTION BY THE ASSES SING OFFICER OF THE SEARCHED PERSON AND BY THE ASSESSING OFFICER OF THE OTHER PERSON AGAINST WHOM PROCEEDINGS U/S 153C OF THE ACT ARE TAKEN UP, THE PROCEEDING IS INVALID AND BAD IN LAW. 6. THE DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, REFERRED TO THE SECTION 124(3)(C) OF THE INCOME-TAX ACT AND CONTEND ED THAT NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER IN A CASE WHERE AN ACTION HAS BEEN TAKEN U/S. 132 OR U/S. 132 A OF THE ACT AFTER THE EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS S ERVED WITH A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 153A OF THE INCOME-TAX ACT OR SUB- SECTION (2) OF SECTION 153C OF THE INCOME-TAX ACT O R AFTER THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. HE SUBMITTED THAT THE OBJECTION WHICH IS NOW BEING RAISED BY THE ASSESSEE THAT THE INITIATIO N OF PROCEEDINGS U/S. 153C OF THE ACT IS BAD IN LAW, SHOULD HAVE BEEN RAISED B Y THE ASSESSEE BEFORE THE ASSESSING OFFICER WITHIN ONE MONTH OF THE INITIATIO N OF PROCEEDINGS BY HIM AND AS THIS WAS NOT DONE, IN VIEW OF THE PROVISIONS OF SECTION 124(3)(C)OF THE ACT, THE SAME CANNOT BE RAISED NOW BEFORE THE TRIBUNAL. 7. IN THE REJOINDER, THEN COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISIONS OF SECTION 124(3)(C) OF THE ACT WHICH PR OVIDES THAT NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER AFTER THE EXPIRY OF ONE MONTH FROM THE DATE OF SERVICE OF NOT ICE ISSUED UNDER SUB- SECTION (1) OF SECTION 153A OR SUB-SECTION (2) OF S ECTION 153C OF THE INCOME- TAX ACT OR AFTER THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER, WAS INSERTED W.E.F. 01.06.2016, WHEREAS THE PROCEEDING IN THE CASE OF ASSESSEE U/S. 153C OF THE ACT WAS INITIATED ON 02.11.2015 AN D, HENCE, THE PROVISIONS ARE NOT APPLICABLE TO THE ASSESSEE. HE FURTHER CONT ENDED THAT IN PRESENT APPEAL BEFORE THE TRIBUNAL, THE JURISDICTION OF THE AO IS NOT CHALLENGED PER SE BUT THE VALIDITY OF THE ACTIN OF AO TO INITIATE PRO CEEDINGS U/S. 153C OF THE ACT WITHOUT RECORDING SATISFACTION WHICH IS A SINE QUA NON IS CHALLENGED AND, THEREFORE, THE SAID PROVISIONS ARE NOT APPLICABLE I N THE CASE OF THE ASSESSEE. ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 5 8. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEFLY THE FACTS RELATED TO ALL THE SIX Y EARS UNDER APPEAL I.E. ASSESSMENT YEARS 2009-2010 TO 2014-2015 ARE THAT A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI SUSHANTA SAHA ON 25.03.2015. THE SAID SHRI SUSHANTA SAHA IS A PARTNER IN THE ASSESSEE FIRM AND DOCUMENTS RELATED TO THE ASSESSEE FIRM WERE ALSO FOUND AND SEIZED DIN THE COURSE OF SEARCH OPERATION. CONS EQUENTLY, THE ASSESSMENT PROCEEDINGS U/S 153C OF THE ACT WAS INITIATED AGAIN ST THE ASSESSEE FOR ALL THE SIX YEARS UNDER CONSIDERATION AND ASSESSMENT U/S. 1 53C R.W.S 143(3) OF THE ACT WAS COMPLETED ON 26.12.2016. THE ASSESSEE CONTE NDED BEFORE US THAT THE INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT IN THE INSTANT CASE IN ABSENCE OF RECORDING OF SATISFACTION OF THE NATURE SPECIFIED IN SECTION 153C OF THE ACT, IS INVALID AND BAD IN LAW. THE AS HAS FILE D PAPER BOOK BEFORE US WHEREIN COPY OF ORDER SHEET ENTRIES FOR ALL THE SIX YEARS UNDER CONSIDERATION ARE FILED AT PAGE NOS. 1 TO 14 OF THE PAPER BOOK. T HE FIRST RECORDING IN THE ORDER SHEET OF THE ASSESSEE IS MADE BY TD HE AO ON 02.11.2015 I.E. THE VERY SAME DATE ON WHICH NOTICE U/S. 153C OF THE ACT WAS ISSUED. THE RECORDING MADE ON 02.11.2015 IN THE ASSESSMENT YEAR 2009-2010 READS AS UNDER:- ORDER SHEEET NAME OF THE ASSESSEE: JOY RAM ENTERPRISE PAN: AAGFJ 6548 N ASSESSMENT YEAR: 2009-10 DATE: 02.11.2015 A SEARCH AND SEIZURE WAS CONDUCTED IN THE PREMISES OF JOY RAM ENTERPRISE ON 25.03.2015 . APPRAISAL OF THE CASE HAS ALREADY BEEN RECEIVED F ROM THE DDIT, GUWAHATI. IT IS A CONSEQUENTIAL CASE OF SUSH ANTA SAHA . ACCORDINGLY A NOTICE U/S. 153A READ WITH SECTION 153C IS ISSUED T O THE ASSESSEE CALLING RETURN FOR THE ASST. YEAR 2009-10 ) BEING ONE OF THE SIX ASSESSMENT YEARS PRECEDING TO THE ASSESSMENT YEAR RELEVANT TO THE PR EVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED) IN THE PRESCRIBED FORMAT AND BE DULY VERIFIED IN PRESCRIBED MANNER AND TO BE SUBMITTED TO THE OFFICE OF THE UNDER SIGNED BY 03.12-2015 . SD/- DCIT 9. THE RECORDINGS MADE FOR ALL OTHER YEARS UNDER CO NSIDERATION ARE ALSO EXACTLY THE SAME, EXCEPT CHANGE OF ASSESSMENT YEAR. THUS, IT IS OBSERVED THAT NOWHERE IT STATES RECORDING OF ANY SATISFACTIO N IN THE CASE OF SEARCHED PERSON WHICH HAVES BEEN PLACED IN THIS FILE OF THE ASSESSEE NOR ANY RECORD OF SATISFACTION TO THE EFFECT THAT BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED HAVE A BEARING ON THE TOTAL INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS. 10. SECTION 153C OF THE ACT AS WAS IN FORCE AT THE MATERIAL TIME, READS AS UNDER:- 1 53C.(1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, WHERE THE ASSESSING OFFICER IS SATISFIED THAT,- (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR R EQUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINED THEREIN, R ELATES TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITI ONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER S UCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH O THER PERSON AND ISSUE ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 6 NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTH ER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSES SING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL, INCOME O F SUCH OTHER PERSON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SU B-SECTION (1) OF SECTION 153A 11. WE FIND THAT THE HON ANDHRA PRADESH HIGH COURT IN THE CASE OF SHETTYS PHARMACEUTICALS & BIOLOGICAL LTD. IN ITTA NO.662 OF 2014 DATED 26.11.2014, HAS CONSIDERED SIMILAR FACTS AND ANALYSED THE ABOVE PROVISIONS OF SECTION 153C OF THE ACT AND UPHELD THE DECISION OF THE TRIB UNAL THAT INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT WAS INVALID AND CO NSEQUENTLY AND CONSEQUENTLY, THE ORDER PASSED U/S. 153C WAS BAD IN LAW. THE HONBLE ANDHRA PRADESH HIGH COURT ON A READING OF SECTION 1 53C OF THE ACT, HAS HELD AS UNDER:- . .. IT IS THEREFORE CLEAR THAT FIRSTLY SATISFACT ION HAS TO BE RECORDED BY THE ASSESSING OFFICER WHO CONDUCTED SEARCH, THAT AN Y MONEY, BULLION, JEWEELLERY OR OTHER VALUABLE ARTICLE OR THING OR BO OKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A O F THE ACT. THEREAFTER, THE ASSESSING OFFICER HAVING JURISDICTI ON OVER THIRD PARTY ON RECEIPT OF THE SEIZED MATERIAL OR BOOKS OF ACCOUNTS OR DOCUMENT BEING HANDED OVER TO HIM SHALL RECORD HIS OWN SATISFACTIO N AFTER EXAMINING THE SAME INDEPENDENTLY WITHOUT BEING INFLUENCED BY THE SATISFACTION OF THE SEIZING OFFICER. IN OTHER WORDS IT IS NOT AN AU TOMATIC ACTION. WE FIND SATISFACTION OF TWO OFFICERS IS MISSING. IN TH IS CONNECTION WE SET OUT THE TEXT OF THE ORDER OF THE ASSESSING OFFICER WHIC H IS AS FOLLOWS:- SEARCH AND SEIZURE OPERATION U/S 132 WAS CARRIED O UT IN THE GROUP CASE OF DR. T. YADHAIAH GOUD AND OTHERS ON 25 .3.2010. DURING THE COURSE OF SEARCH OPERATION DOCUMENTS BEL ONGING TO SHETTY PHARMACEUTICALS & BILOOGICAL LTDD., HAS BEEN SEIZED. HENCE IT IS CONSIDERED TO INITIATE PRO CEEDING U/S 153C OF THE IT ACT. THE AFORESAID SECTION MANDATES RECORDING OF SATISFA CTION OF THE ASSESSING OFFICER(S) IS A PRE-CONDITION FOR INV OKING JURISDICTION AND IT IS NOT A MERE FORMALITY BECAUSE RECORDING OF SATISFACTION POSTULATES APPLICATION OF MIND CONSCIO USLY AS THE DOCUMENTS SEIZED MUST BE BELONGING TO THE ANY OTHER PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153-A OF THE ACT. IT IS CONTENDED THAT THE SAME ASSESSING OFFICER IS INV OLVED IN THE MATTER. THIS FACT DOES NOT DISPENSE WITH ABOVE REQU IREMENT. IT IS SETTLED POSITION OF LAW THAT WHEN A THING IS TO BE DONE IN ONE PARTICULAR MANNER UNDER LAW THIS HAS TO BE DONE IN THAT MANNER ALONE AND NOT OTHER WAY (SEE NAZIR AHEMD V. KIND EM PEROR). WE THINK THE LEARNED TRIBUNAL HAS CORRECTLY FOLLOWE D THE PRINCIPLE. WE DO NOT FIND ANY ELEMENT OF LAW TO BE DECIDED. 12. THE ABOVE DECISION OF HONBLE ANDHRA PRADESH HI GH COURT WAS FOLLOWED BY THE HYDERABAD TRIBUNAL IN THE CASE OF SRI SATYAN ARAYAN AGARWAL VS. ASST. CIT, ITA NO. 1764/HYD/2013 DATED 08.01.2016. TO THE SAME EFFECT IS ALSO THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF TANVIR COLLECTIONS PVT. LTD. VS ACIT IN ITA NO.2421/DEL/2014 , ORDER DATED 16.01.2015. THE CBDT ALSO VIDE ITS CIRCULAR NO.24/2015, DATED 31.1 2.2015 HAS ACCEPTED THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. CALCUTTA KNITWEARS, [2014] 362 ITR 673( SC), WHEREIN IT WAS HELD THAT R ECORDING OF A SATISFACTION ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 7 IS SINE QUA NON FOR TAKING AN ACTION AGAINST A PERS ON U/S. 158BD OF THE ACT I.E. A PERSON IN WHOSE CASE SEARCH WAS NOT CONDUCTED AND ALSO ACCEPTED THAT THIS DECISION IS SQUARELY APPLICABLE IN CASE COVERE D BY SECTION 153C OF THE ACT AND ALSO FURTHER DIRECTED THAT IN PENDING LITIG ATION WITH REGARD TO RECORDING OF SATISFACTION NOTE U/S. 158BD/153C SHOULD BE WITH DRAWN/NOT PRESSED, IF IT DOES NOT MEET THE GUIDELINES LAID DOWN BY THE HONB LE APEX COURT. IN THE CIRCUMSTANCES, IN THE INSTANT CASE, WE FIND THAT BO TH THE TWO SATISFACTIONS WHICH WERE REQUIRED TO BE RECORDED BY THE ASSESSING OFFICER AS PER PROVISIONS OF SECTION 153C, ONE IN CAPACITY AS THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THE OTHER IN THE CAPACITY OF TH E AO OF THE ASSESSEE ( OTHER PERSON ), BOTH ARE MISSING. HENCE, WE HAVE NO HESITATION IN HOLDING THAT THE INITIATION OF PROCEEDINGS U/S. 153C OF THE ACT, IN THE INSTANT CASE, IS BAD IN LAW AND WITHOUT JURISDICTION AND CONSEQUENTL Y, THE ORDERS PASSED BY THE AO U/S 153C R.W.S. 143(3) FOR ALL THE SIX ASSES SMENT YEARS UNDER CONSIDERATION ARE LIABLE TO BE CANCELLED. 13. THE LD. DEPARTMENTAL REPRESENTATIVE HAS REFERRE D TO THE PROVISIONS OF SECTION 124(3)(C) OF THE INCOME-TAX ACT, WHICH PROV IDES THAT NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER AFTER EXPIRY OF ONE MONTH FROM THE DATE OF SERVICE OF NOT ICE UNDER SECTION 153C OF THE INCOME-TAX ACT OR AFTER THE COMPLETION OF ASSES SMENT, WHICHEVER IS EARLIER, TO CONTEND THAT THE CHALLENGE TO THE INITI ATION OF PROCEEDINGS U/S. 153C OF THE ACT, NOW AT THIS STAGES, IS NOT VALID. WE DO NOT FIND ANY MERIT IN THIS CONTENTION OF THE LD. DR. FIRSTLY, THIS SECTION 124 (3)(C) OF THE INCOME-TAX ACT, WAS INSERTED IN THE STATUE W.E.F. 01.06.2016, WHERE AS IN THE INSTANT CASE, THE PROCEEDINGS U/S. 153C WAS INITIATED ON 02.11.2015. MOREOVER, IN THE INSTANT APPEALS, THE JURISDICTION OF THE AO IS NOT CHALLENG ED PER SE BUT THE VALIDITY OF THE ACTION OF AO TO INITIATE PROCEEDINGS U/S. 153C OF THE ACT WITHOUT RECORDING SATISFACTION WHICH IS A SINE QUA NON, IS CHALLENGED . IT IS NOT THE CASE OF THE ASSESSEE THAT THE ACIT, CIRCLE-AGARTALA HAD NO JURI SDICTION TO MAKE ASSESSMENT IN THE CASE OF THE ASSESSEE. FURTHER, TH E ISSUE INVOLVED BEING A LEGAL ISSUE, THE SAME CAN BE RAISED FOR THE FIRST T IME BEFORE THE TRIBUNAL IS A SETTLED POSITION OF LAW IN VIEW OF THE DECISION OF HONBLE, WHEREIN IT HAS BEEN HELD THAT NOTHING PREVENTED THE TRIBUNAL TO CONSIDE R THE QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS, ALTHOUGH NOT RAI SED EARLIER. WE, THEREFORE, HEREBY CANCEL THE ORDERS OF LOWER AUTHORITIES FOR A LL THE SIX ASSESSMENT YEARS UNDER CONSIDERATION AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 14. IN VIEW OF OUR ABOVE DECISION, THE ISSUE RAISED IN OTHER GROUNDS OF APPEAL HAVE BECOME INFRUCTUOUS AND THEREFORE, THE SAME ARE NOT ADJUDICATED. 3. WE AFFORDED ADEQUATE OPPORTUNITY TO THE DEPARTME NT TO REBUT THIS CLINCHING FACT OF ASSESSING OFFICER HAVING NOT RECORDED A VALID SATIS FACTION AS PRESCRIBED U/S 153C OF THE ACT. THERE IS NO SUCH REBUTTAL FORTHCOMING FROM THE DEPARTMENTS SIDE DURING THE COURSE OF HEARING. WE THEREFORE ADOPT THE ABOVE EXT RACTED DETAILED REASONING MUTATIS MUTANDIS TO QUASH THE IMPUGNED PROCEEDINGS ON ACCOUNT OF AS SESSING OFFICERS FAILURE IN NOT RECORDING A VALID SATISFAC TION U/S. 153C OF THE ACT. THE IMPUGNED ASSESSMENT(S) ARE ACCORDINGLY QUASHED. THE ASSESSEES OTHER GROUNDS ON MERITS ARE RENDERED INFRUCTUOUS. WE ADOPT THE ABOVE EXTRACTED REASONING MUTATIS MUTANDIS TO QUASH ALL THESE ASSESSMENT(S) FRAMED BY THE LOWER AUTHORITIES IN AS SESSMENT YEARS 2010-11 ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 8 TO 2014-15. THE ASSESSEES FIRST FIVE APPEAL(S) ITA NO.S 20-24/GAU/2019 SUCCEED ACCORDINGLY. HIS ASSESSEES PENALTY APPEAL ITA NO.300/GAU/2018 I S ALSO ACCEPTED AS A NECESSARY COROLLARY. 3. LASTLY COMES ASSESSEES APPEAL ITA NO.25/GAU/201 9 CHALLENGING CORRECTNESS OF THE SEC. 144 BEST JUDGMENT ON ACCOUNT OF ASSESSING OFFICER NOT HAVING ISSUED THE CORRESPONDING SHOW CAUSE NOTI CE AS U/S 144(1) OF THE ACT. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO R EBUT THE CLINCHING FACT THAT OUR VERY ORDER IN RELATED ASSESSEE SHRI RANJIT KUMA R SAHAS CASE ITA NO.108/GAU/2018 HAS QUASHED THE CORRESPONDING ASSES SMENT AS UNDER:- 5. NEXT COMING TO LATTER ASSESSEES LAST APPEAL IT A NO.108/GAU/2018 FOR ASSESSMENT YEAR 2015-16, WE FIND THAT HE CHALLENGES CORRECTNESS OF THE BEST JUDGMENT ASSESSMENT FRAMED BY THE ASSESSING OFFICER ON 30.12.2016 WITHOUT ISSUING ANY NOTICE U/S. 142(1) OF THE ACT. THE CLINCHING FA CT HEREIN IS THAT NO SUCH NOTICE HAD BEEN ISSUED TO THE TAXPAYER DURING THE COURSE OF AS SESSMENT. SAME FACTUAL POSITION CONTINUES SEC. 144(1) NOTICE IS CONCERNED. WE FIND IN THIS BACKDROP A CO-ORDINATE BENCHS DECISION IN IT(SS)A NO.92/KOL/2008 IN ACIT VS. SHRI RAMESH CHAND RATHI DECIDED ON 02.02.2018 HAS HELD A BEST JUDGMENT ASSE SSMENT AS INVALID BY THE FOLLOWING DETAILED DISCUSSION:- 11. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR AN D LD. COUNSEL FOR THE ASSESSEE ON THE PRELIMINARY ISSUE OF VALIDITY OF OR DER OF ASSESSMENT PASSED U/S 158BC READ WITH SECTION 144 OF THE ACT. IT IS C LEAR FROM THE ORDER OF CIT(A) THAT NOTICE U/S 142(1) OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE. THE REVENUE HAS NOT CHALLENGED THIS FINDI NG OF THE CIT(A). NEVERTHELESS THE LD. DR DREW OUR ATTENTION TO PAGE NO.316 OF 6 THE ASSESSEES PAPER BOOK WHICH IS A RECORD OF PROCEEDI NGS BEFORE AO CONTAINING ORDER SHEET ENTRIES OF THE AO MADE IN TH E COURSE OF ASSESSMENT PROCEEDINGS. IN AN AFFIDAVIT FILED BEFORE THE TRIBU NAL, THE AO HAS STATED THAT THE ORIGINAL ORDER SHEET ENTRY IS NOT AVAILABLE IN THE ASSESSMENT RECORDS. THE ORDER SHEET ENTRY DATED 05.01.2001 READS AS FOLLOWS : 5.01.2001 NO BLOCK RETURN FILED, THE NOTICE U/S 14 2(1) CALLING FOR BOOKS OF A/CS, BANK STATEMENT AND CLARIFICATION OF SEIZED DO CUMENTS ALONG WITH COPY OF A/CS. 12. AS WE HAVE ALREADY STATED THERE IS NO EVIDENCE ON RECORD TO SHOW THAT NOTICE U/S 142(1) OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE. IT IS ALSO SEEN FROM THE ORDER SHEET ENTRY THAT THE ORDER SHEE T ENTRY DATED 05.01.2011 AND 16.05.2001 HAVE NOT BEEN SIGNED BY THE AO. THER EFORE THE ORDER SHEET ENTRY DATED 5.1.2001 DOES NOT SHOW THAT NOTICE U/S. 142(1) WAS ISSUED OR SERVED ON THE ASSESSEE. THE REVENUE IN ITS GROUNDS OF APPEAL HAS ALSO NOT CHOSEN TO CHALLENGE THE FINDINGS OF THE CIT(A) THAT NO NOTICE U/S.142(1) WAS ISSUED OR SERVED ON THE ASSESSEE BY THE AO BEFORE C OMPLETING THE ASSESSMENT. 13. THE LD. DR DREW OUR ATTENTION TO PAGE 5 OF THE ASSESSEES PAPER BOOK WHEREIN A COPY OF THE NOTICE U/S.142(1) DATED 05.01 .2001 IS PLACED. THE CONTENTION OF THE LD. DR IS THAT THE ASSESSEE HAS H IMSELF FILED THE AFORESAID NOTICE IN ITS PAPER BOOK AND THEREFORE IT SHOULD BE PRESUMED THAT THE ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 9 ASSESSEE WAS SERVED WITH THE NOTICE US/ 142(1) OF T HE ACT. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT COPY OF THE NOTICE PLACED IN PAGE-5 AND 5A OF THE ASSESEES PAPER BOOK WAS A COPY WHICH WAS FILED BY THE AO ALONG WITH THE REMAND REPORT DATED 01.02.2008 BEFORE CIT(A) AN D THAT COPY WAS FILED BY THE ASSESSEE IN THE PAPER BOOK. IT WAS SUBMITTED BY HIM THAT THE AFORESAID NOTICE WAS NOT SERVED ON THE ASSESSEE NOR IS THERE ANY EVIDENCE ON RECORD TO SHOW THAT THE SAID NOTICE WAS ISSUED BY THE AO. 14. AS WE HAVE ALREADY STATED THE AO HAS FILED AN A FFIDAVIT BEFORE THE TRIBUNAL REGARDING THE NON AVAILABILITY OF THE ORIG INAL ORDER SHEET ENTRIES CONTAINING THE ENTRY DATED 5.1.2001. WE ARE OF THE VIEW THAT IN THE LIGHT OF THE AFFIDAVIT FILED BY THE AO BEFORE THE TRIBUNAL REGAR DING NON AVAILABILITY OF ORDER SHEET ENTRIES AND IN THE LIGHT OF CLEAR FINDINGS OF CIT(A) IN HIS ORDER THAT NO NOTICE U/S 142(1) OF THE ACT WAS ISSUED OR SERVED O N THE ASSESSEE BY THE AO, THE CONTENTION OF THE ASSESSEE THAT NO NOTICE U/S 1 42(1) OF THE ACT WAS ISSUED OR SERVED ON THE ASSESSEE HAS TO BE ACCEPTED. THE Q UESTION THEREFORE THAT ARISES FOR CONSIDERATION IS WHAT IS THE EFFECT OF T HE NON ISSUE OF SERVICE OF NOTICE U/S 142(1) OF THE ACT? 15. WE HAVE ALREADY SEEN THAT BEFORE MAKING THE BES T JUDGMENT U/S144(1) OF THE ACT, THE AO HAS TO SPECIFICALLY CALL UPON THE A SSESSEE BY A NOTICE TO SHOW CAUSE AS TO WHY THE BEST JUDGMENT SHOULD NOT BE MAD E. THIS IS A REQUIREMENT OF THE FIRST PROVISO TO SECTION 144(1) OF THE ACT. ADMITTEDLY NO SUCH NOTICE WAS EITHER ISSUED OR SERVED ON THE ASSESSEE. SUCH NOTIC E MAY NOT BE REQUIRED IF A NOTICE U/S 142(1) OF THE ACT HAS ALREADY BEEN SERVE D ON THE ASSESSEE. THIS IS AS PER THE SECOND PROVISO TO SECTION 144(1) OF THE ACT. IN THIS CASE, AS WE HAVE ALREADY SEEN, NO NOTICE U/S 142(1) OF THE ACT WAS EITHER ISSUE OR SERVED ON THE ASSESSEE. UNDER SECTION 158BH OF THE ACT THE PROVISION OF CHAPTER- XIV-B NAMELY BLOCK ASSESSMENT PROCEEDINGS IN SEARCH CASES, IT IS LAID DOWN THAT THE OTHER PROVISION OF THE ACT WILL APPLY, EXC EPT OTHERWISE PROVIDED IN CHAPTER XIVB. THEREFORE FOR MAKING AN ASSESSMENT U. /S 158BC OF THE ACT R.W.S. 144 OF THE ACT, THE REQUIREMENTS LAID DOWN I N SEC.144 OF THE ACT WILL HAVE TO BE SATISFIED. 16. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTEN TION TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS HOTEL BLUE MOON 321 ITR 362 (SC). IN THE AFORESAID DECISION THE QUESTION THAT A ROSE FOR CONSIDERATION BEFORE THE HONBLE SUPREME COURT WAS AS TO WHETHER ISSUE OF NOTICE U/S 143(2) OF THE ACT IS MANDATORY BEFORE MAKING THE AS SESSMENT U/S 158BC R;W.S. 143(3) OF THE ACT. THE HONBLE SUPREME COURT HELD AS FOLLOWS :- IF THE ASSESSING, FOR ANY REASON, REPUDIATES THE R ETURN FILED BY AN ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 158BC (A) OF THE INCOME TAX ACT, 1961 RELATING TO A BLOCK ASSESSMENT, THE A SSESSING OFFICER MUST NECESSARILY ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO SECTION 143(2 ). BY MAKING THE ISSUE OF NOTICE MANDATORY, SECTION 15 8BC, DEALING WITH ASSESSMENTS, MAKES SUCH NOTICE THE VERY FOUNDATION FOR JURISDICTION. SUCH NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO I S FOUND TO HAVE UNDISCLOSED INCOME. SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED, CLAUSE (B) OF SECTION 158BC PROVIDES THAT THE ASSES SING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PE RIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND 'THE PROVISIONS OF SECTIO N 142, SUB-SECTIONS (2) ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 10 AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS MAY BE, APPLY. THIS INDICATES THAT THIS CLAUSE ENABLES THE ASSESSING OFFICER, AFTER THE RETURN IS FILED, TO COMPLETE THE ASSESSMENT UNDER S ECTION 143(2) BY FOLLOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER SECTION 14 3(2)/142. THIS DOES NOT PROVIDE ACCEPTING THE RETURN AS PROVIDED UNDER SECT ION 143(1)(A) : THE OFFICER HAS TO COMPLETE THE ASSESSMENT UNDER SECTION 143(3) ONLY. IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH S ECTION 158BC, NOTICE UNDER SECTION) 43(2) SHOULD BE ISSUED WITHIN ONE YE AR FROM THE DATE OF FILING OF THE BLOCK RETURN. OMISSION ON THE ASSESSING AUTHORI TY TO ISSUE NOTICE UNDER SECTION 143 (2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THEREFORE THE REQUIREMENT OF NOTICE UNDER SECTION 1 43(2) CANNOT BE DISPENSED WITH. 17. THE LD. COUNSEL SUBMITTED THAT THOUGH THE ISSUE BEFORE THE HONBLE SUPREME COURT WAS WITH REGARD TO THE NECESSITY OF N OTICE U/;S 143(2) OF THE ACT, THE HONBLE SUPREME COURT HAS ALSO MADE A REFE RENCE TO THE PROVISION U/S 142 OF THE ACT AND HAS HELD THAT HIS SUBMISSION WAS THAT THE ABSENCE OF NOTICE U/S 142(1) OF THE ACT WILL ALSO RENDER THE O RDER OF ASSESSMENT NULLITY AS HELD BY THE HONBLE SUPREME COURT. IN THE CASE OF H OTEL BLUE MOON (SUPRA). 18. THE LD. DR FURTHER SUBMITTED THAT THE OBSERVATI ONS OF THE HONBLE SUPREME COURT WITH REGARD TO THE PROVISION OF SECTION 142 O F THE ACT ARE ONLY ARBITRARY AND SHOULD NOT BE APPLIED FOR NON ISSUE OR NON SERV ICE OF NOTICE U/S 142(1) OF THE ACT AND HAVE COME TO THE CONCLUSION THAT ORDER OF ASSESSMENT U/S 158BC OF THE ACT IS NOT VALID FOR WANT OF SERVICE OF NOTI CE U/S 142(1) OF THE ACT. THE LEARNED DR SUBMITTED THAT THE NOTICE U/S.158BC ITSE LF SERVES THE PURPOSE OF SEC.142(1) NOTICE AND THEREFORE THE 2ND PROVISO TO SEC.144(1) WOULD APPLY IN THE PRESENT CASE. ACCORDING TO HIM THEREFORE THE OR DER U/S.144 OF THE ACT WAS RIGHTLY PASSED BY THE AO. 19. WE HAVE CONSIDERED HIS SUBMISSION AND ARE OF TH E VIEW THAT THE SAME IS WITHOUT ANY MERIT. SEC.158BC(B) CLEARLY CONTEMPLATE S APPLICABILITY OF PROVISIONS OF SEC.142 OF THE ACT FOR FRAMING A ORDE R OF ASSESSMENT UNDER SEC.158BC OF THE ACT UNDER CHAPTER XIV B OF THE ACT . THE PROVISIONS OF SEC.158BC READS THUS: SEC.158BC PROCEDURE FOR BLOCK ASSESSMENT WHERE ANY SEARCH HAS BEEN CONDUCTED UNDER SECTION 1 32 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS ARE REQUISITIONE D UNDER SECTION 132A, IN THE CASE OF ANY PERSON, THEN, (A) THE ASSESSING OFFICER SHALL (I) IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACCO UNTS OR OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED AFTER THE 30T H DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997 , SERVE A NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITH IN SUCH TIME NOT BEING LESS THAN FIFTEEN DAYS; (II) IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACC OUNTS OR OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED ON OR AFTER T HE 1ST DAY OF JANUARY, 1997, SERVE A NOTICE TO SUCH PERSON REQ UIRING HIM TO FURNISH WITHIN SUCH TIME NOT BEING LESS THAN FIF TEEN DAYS BUT NOT MORE THAN FORTY FIVE DAYS, AS MAY BE SPECIFIED IN THE NOTICE A RETURN IN THE P RESCRIBED FORM AND VERIFIED IN THE SAME MANNER AS A RETURN UNDER CLAUSE (I) OF SUB-SECTION (1) OF SECTION ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 11 142, SETTING FORTH HIS TOTAL INCOME INCLUDING THE U NDISCLOSED INCOME FOR THE BLOCK PERIOD: PROVIDED THAT NO NOTICE UNDER SECTION 148 IS REQUIRED TO BE ISSUED FOR THE PURPOSE OF PROCEEDING UNDER THIS CHAPTER: PROVIDED FURTHER THAT A PERSON WHO HAS FURNISHED A RETURN U NDER THIS CLAUSE SHALL NOT BE ENTITLED TO FILE A REVISED RETURN; (B) THE ASSESSING OFFICER SHALL PROCEED TO DETERMIN E THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECT ION 158BB AND THE PROVISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS MAY BE, APPLY; (C) THE ASSESSING OFFICER, ON DETERMINATION OF THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN ACCORDANCE WITH THIS CHAPTER, SHALL PASS AN ORDER OF ASSESSMENT AND DETERMINE THE TAX PAYABLE BY HIM ON THE BASIS OF SUCH ASSESSMENT; (D) THE ASSETS SEIZED UNDER SECTION 132 OR REQUISIT IONED UNDER SECTION 132A SHALL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIO NS OF SECTION 132B. 20. IT IS THUS CLEAR THAT NOTICE U/S.158BC OF THE A CT WILL NOT BE SUFFICIENT COMPLIANCE OR SUBSTITUTE FOR ISSUE OF NOTICE U/S.14 2 OF THE ACT. NON COMPLIANCE OF TERMS OF A NOTICE U/S.142(1) OF THE A CT HAS CONSEQUENCES SET OUT IN SEC.144 OF THE ACT. THEREFORE THE 1ST PROVIS O TO SEC.144(1) OF THE ACT CONTEMPLATES SERVICE OF A SPECIFIC NOTICE BRINING T O THE NOTICE OF THE ASSESSEE THE CONSEQUENCES OF NON COMPLIANCE WITH THE TERMS O F THE NOTICE U/S.142(1) OF THE ACT. THE 2ND PROVISO TO SEC.144(1) PROVIDES THAT THE 1ST PROVISO TO SEC.144(1) WILL NOT APPLY IF A NOTICE U/S.142(1) WA S ALREADY SERVED ON THE ASSESSEE. THIS IS BECAUSE IN THE FORM OF NOTICE U/S .142(1) OF THE ACT, THERE IS A SPECIFIC CLAUSE WHICH SAYS THAT FAILURE TO COMPLY WITH THE SAID NOTICE WILL RESULT IN AN EX-PARTE ASSESSMENT BEING PASSED. 21. A READING OF THE HONBLE SUPREME COURTS DECISI ON IN THE CASE OF HOTEL BLUE MOON (SUPRA) CLEARLY SHOWS THAT THOUGH THE ISS UE BEFORE THE HONBLE SUPREME COURT WAS WITH REGARD TO THE EFFECT OF NON ISSUE OF SERVICE OF NOTICE U/S 142(3) OF THE ACT ON THE ORDER OF ASSESSMENT PA SSED U/S 158BC OF THE ACT THE HONBLE SUPREME COURT HAS EXAMINED THE PROCEDUR AL REQUIREMENT FOR FRAMING THE ASSESSMENT U/S 158BC OF THE ACT. THIS W ILL BE CLEAR FROM THE FOLLOWING OBSERVATIONS OF THE HONBLE SUPREME COURT :- WE MAY NOW REVERT BACK TO SECTION 158BC(B) WHICH I S THE MATERIAL PROVISION WHICH REQUIRES OUR CONSIDERATION. SECTION 158BC(B) PROVIDES FOR ENQUIRY AND ASSESSMENT. THE SAID PROVISION READ S 'THAT THE ASSESSING OFFICER SHALL PROCEED TO DETERMINE THE UN DISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECT ION 158BB AND THE PROVISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS MAY BE , APPLY.' AN ANALYSIS OF THIS SUB-SECTION INDICATES THAT, AFTER THE RETURN IS FILED, THIS CLAUSE ENABLES THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT BY FOLLOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER SECTION, 143(2)/142 AND COMPLETE THE ASSESSMENT SEC TION 143(3). THIS SECTION DOES RIOT PROVIDE FOR ACCEPTING THE RE TURN AS PROVIDED UNDER SECTION 143(1)(A). THE ASSESSING OFF ICER HAS TO COMPLETE THE ASSESSMENT UNDER SECTION 143(3) ONLY. IN CASE OF ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 12 DEFAULT IN NOT FILING THE RETURN OR NOT COMPLYING W ITH THE NOTICE UNDER SECTION 143(2)/142, THE ASSESSING OFFICER IS AUTHORIZED TO COMPLETE THE ASSESSMENT EX PARTE UNDER SECTION 144. CLAUSE (B) OF SECTION 158BC BY REFERRING TO SECTION 143(2) AND (3) WOULD APPEAR TO IMPLY THAT THE PROVISIONS OF SECTION 143( 1) ARE EXCLUDED. BUT SECTION 143(2) ITSELF BECOMES NECESSA RY ONLY WHERE IT BECOMES NECESSARY TO CHECK THE RETURN, SO THAT WHERE BLOCK RETURN CONFORMS TO THE UNDISCLOSED INCOME INF ERRED BY THE AUTHORITIES, THERE IS NO REASON, WHY THE AUTHORITIE S SHOULD ISSUE NOTICE UNDER SECTION 143(4). HOWEVER, IF AN ASSESSM ENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH, SECTION 1 58BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YE AR FROM THE DATE OF FILING OF BLOCK RETURN. OMISSION ON THE PAR T OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 1 43(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CU RABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. ACCORDINGLY, WE CONCLUDE THAT EVEN FOR THE PURPOSE OF CHAPTER- XIV-B OF THE ACT, FOR THE DETERMINATION OF UNDISCLO SED INCOME FOR A BLOCK PERIOD UNDER THE PROVISIONS OF SECTION 158B C, THE PROVISIONS OF SECTION 142 AND SUB-SECTIONS (2) AND (3) OF SECTION 143 ARE APPLICABLE AND NO ASSESSMENT COULD BE MADE WITHOUT ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT. (IN BOLD LETTERS FOR EMPHASIS) 22. IT IS THUS CLEAR THAT THE PROVISION TO SECTION 142 OF THE ACT ALSO REQUIRES TO BE COMPLIED BY THE AO WHILE FRAMING THE ASSESSMENT U/S 158BC OF THE ACT. NON ISSUE AND NON SERVICE OF NOTICE U/S 142(1) AS W ELL AS IN THE FIRST PROVISO U/S 144(1) CANNOT BE REGARDED AS PROCEDURAL IRREGUL ARITY WHICH IS CURABLE. THEREFORE THE EFFECT OF SUCH IRREGULARITY WOULD BE THAT THE ASSESSMENT WILL HAVE TO BE HELD TO BE NOT VALID IN LAW AND IS LIABL E TO BE ANNULLED. NON COMPLIANCE WITH THE AFORESAID REQUIREMENT WHICH CON FER THE JURISDICTION OF THE AO WOULD RENDER THE ORDER PASSED BY THE AO AS INVAL ID IN LAW AND SUCH ORDER OF ASSESSMENT IS LIABLE TO BE ANNULLED. WE ALSO FIN D SUPPORT FROM THE AFORESAID CONCLUSIONS FROM THE DECISION OF THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF MOHINI DEVI MALPANI VS ITO 77 ITR 674 ( CAL). 23. FOR THE REASONS GIVEN ABOVE WE HOLD THAT THE OR DER U/S 158BC OF THE ACT IS BAD IN LAW AND LIABLE TO BE ANNULLED. IN PARTICU LAR, WE ARE OF THE VIEW THAT THE STATUTORY REQUIREMENT OF FRAMING THE ASSESSMENT U/S 144 OF THE ACT HAVE NOT BEEN COMPLIED WITH AS CONTENDED BY THE ASSESSEE IN GROUND NO.2AC OF THE CROSS OBJECTION. FOR THE REASONS GIVEN ABOVE WE ANNUL THE ORDER OF ASSESSMENT. 24. ONE OF THE ARGUMENT OF THE LEARNED DR WAS THAT THE OBSERVATIONS OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOO N (SUPRA), IN SO FAR AS IT RELATES TO SEC.142 OF THE ACT, ARE ONLY OBITER DICT UM AND THEREFORE SHOULD NOT BE REGARDED AS JUDICIAL PRECEDENT. WE ARE UNABLE TO AGREE WITH THIS ARGUMENT. EVEN ASSUMING THE IT(SS)A.NO.92/KOL/2008 & C.O.63/K OL/2008 SHRI RAMESH CHAND RATHI BLOCK PERIOD 1991-92 TO 2000- 01 OBSERV ATIONS OF THE HONBLE SUPREME COURT ARE OBITER DICTUM, YET THE SAME HAS A BINDING FORCE AS FAR AS THE TRIBUNAL IS CONCERNED. ITA NO.20-25/GAU/2019 & 300/GAU/2018 AYS 10- 11 TO15-16 SHRI SUBRATA KR. SAHA VS. ACIT, CIR-AGARTALA PAGE 13 6. WE ADOPT THE ABOVE DETAILED REASONING MUTATIS MU TANDIS TO QUASH THIS BEST ASSESSMENT IN ASSESSMENT YEAR 2015-16 FORMING SUBJE CT-MATTER OF ITA 108/GAU/2018. 4. WE ADOPT THE ABOVE DETAILED REASONING HEREINABOV E AS WELL TO QUASH THE IMPUGNED BEST JUDGMENT ON ACCOUNT OF ASSESSIN G OFFICERS FAILURE IN FOLLOWING THE PRESCRIBED PROCEDURE. THIS LAST APPEA L ITA 25/GAU/2019 IS ALSO ACCEPTED. 5. THE ASSESSEES INSTANT SEVEN APPEALS ARE ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(3) OF T HE ITAT RULES BY PUTTING ON NOTICE BOARD ON 02/08/2019 SD/- SD/- ( ) (&' ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP (- 02 / 08 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI SUBRATA KR. SAHA, C/O SHRI RANJIT KR. SAHA, OLD THANA ROAD, BANAMALIPUR, NR. MAHANAM ANGAN, AGARTALA-799001 2. /REVENUE-ACIT, CIRCLE-AGARTALA, CITY CENTRE, 5 TH FLOOR, PARADISE CHOWMOHANI, HGB ROAD, AGARTALA 3. 3 4 9 / CONCERNED CIT GUWAHATI 4. 4- / CIT (A) GUWAHATI 5. < ''3, 3, 9 / DR, ITAT, GUWAHATI 6. B / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY (ON TOUR) 3,