M/s. Weedo Ventures Pvt. Ltd. (Earlier Known as M/s. Equal Projects Pvt. Ltd.), Kolkata V. CIT(A)-3, Kolkata

ITA 2535/KOL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6445 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 03-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MIRAJ D SHAH AR SHRI I
• Keywords: Principle of natural justice; Earning of tax free income; Period of limitation; Additional evidence; Question of law; Assessment record; Time period of passing order; Reassessment proceedings; Rule 8D; Set aside
• Section: 143(3); 142(1); 14A; 250; 292BB; 251; 143(2); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER) ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD.......................................................APPELLANT [EARLIER KNOWN AS M/S. EQUAL PROJECTS PVT. LTD.] PROPERTY NO. 11 BLOCK-A, MAHARANA PRATAP ENCLAVE PITAMPURA DELHI - 110034 [PAN : AACCE 4580 C] VS. INCOME TAX OFFICER, WARD-9(2), KOLKATA.........................................................................RESPONDENT ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 M/S. WEEDO VENTURES PVT. LTD.......................................................APPELLANT [EARLIER KNOWN AS M/S. EQUAL PROJECTS PVT. LTD.] PROPERTY NO. 11 BLOCK-A, MAHARANA PRATAP ENCLAVE PITAMPURA DELHI - 110034 [PAN : AACCE 4580 C] VS. COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATA........................................................RESPONDENT APPEARANCES BY: SHRI MIRAJ D. SHAH, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI IMOKABA JAMIR, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 31 ST , 2021 DATE OF PRONOUNCING THE ORDER : APRIL 16 TH , 2021 ORDER PER J. SUDHAKAR REDDY, AM :- BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 3, (HEREINAFTER THE LD. CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 29/07/2019, FOR THE ASSESSMENT YEAR 2011-12 & 2012-13. AS THE ISSUES ARISING IN BOTH THESE APPEALS ARE COMMON, FOR THE SAKE OF CONVENIENCE, THEY ARE HEARD TOGETHER AND DISPOSED OFF BY WAY OF THIS COMMON ORDER. FIRST WE TAKE UP THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2012-13 IN ITA NO. 2129/KOL/2019 2. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN IN SHARES & SECURITIES DURING THE FINANCIAL YEAR 2010 2011- 12. DURING THE FINANCIAL YEAR ENDED ON 31 12) THE COMPANY HAS NOT EARNED ANY EXEMPT INCOME. ASSESSMENT PROCEEDINGS, TO A QUERY FROM THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THAT T HE INVESTMENT IS UNQUOTED EQUITY SHARES ARE NOT DIVIDED YIELDING ONE BUT ARE HELD TO EARN APPRECIATION IN THEIR VALUE. THE APPRECIATION I UNDER THE INCOME TAX ACT. THE COMPANY HAS NOT BORROWED ANY FUND INTEREST ON BORROWINGS ATTRIBUTABLE TO SUCH INVESTMENTS DOES NOT ARISE. THE ASSESSING OFFICER WITHOUT ASSIGNING ANY REASON, REFUSED TO ACC T HE SUBMISSION GIVEN BY THE ASSESSEE STATED THE RATIONALE OF ITS OFFER, BASED ON FACTS AND LEGAL ASPECTS. THE ASSESSING OFFICER REJECTED THE SAME ON THE GROUND THAT CBDT HAS ALREADY PRESCRIBED THE MANNER OF COMPUTATION VIDE CIRCULAR NO. 5/2014 READ WITH ADDITION OF RS.1,46,785/-. 2.1. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY. THE LD. CIT(A) ENHANCED THE ASSESSMENT BY INVOKING HIS POWERS U/S 251 OF THE ACT. HE DIRECTED THE ASSESSING OFFICER TO MAKE AN ADDITION OF RS.17,18,00,000/ THE ACT. 3. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS ERRED IN MAKING AN ADDITION OF RS.17,18,00,000/ AND HENCE THE SAME BE DELETED. 2) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS TH OF INCOME WAS NOT APPLICABLE IN THE FACTS OF THE CASE AND HENCE THE SAME BE REVERSED AND THE ADDITION MADE BE DELETED. 3) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS DID NOT EXAMINE THE ASSESSMENT RECORDS AND EXAMINE THE DO HENCE EVEN ON MERITS THE ADDITION OF RS.17,18,00,000/ SAME BE DELETED. 4) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION U/ S 68 OF THE IT ACT 1961 OFRS.17,18,00,0 00 WAS UNCALLED FOR AND HENCE THE SAME BE DELETED. 2 M/S. WEEDO VENTURES PVT. LTD. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF INVESTMENTS IN SHARES & SECURITIES DURING THE FINANCIAL YEAR 2010 - 11, CORRESPONDING ASSESSMENT YEAR 12. DURING THE FINANCIAL YEAR ENDED ON 31 ST MARCH, 2011 (ASSESSMENT YEAR 2011 12) THE COMPANY HAS NOT EARNED ANY EXEMPT INCOME. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, TO A QUERY FROM THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED HE INVESTMENT IS UNQUOTED EQUITY SHARES ARE NOT DIVIDED YIELDING ONE BUT ARE HELD TO EARN APPRECIATION IN THEIR VALUE. THE APPRECIATION I N UN QUOTED EQUITY SHARES IS TAXABLE UNDER THE INCOME TAX ACT. THE COMPANY HAS NOT BORROWED ANY FUND . T INTEREST ON BORROWINGS ATTRIBUTABLE TO SUCH INVESTMENTS DOES NOT ARISE. THE ASSESSING OFFICER WITHOUT ASSIGNING ANY REASON, REFUSED TO ACC EPT TH E EXPLANATION OF THE ASSESSEE. HE SUBMISSION GIVEN BY THE ASSESSEE STATED THE RATIONALE OF ITS OFFER, BASED ON FACTS AND LEGAL ASPECTS. THE ASSESSING OFFICER REJECTED THE SAME ON THE GROUND THAT CBDT HAS ALREADY PRESCRIBED THE MANNER OF COMPUTATION IN CONNECTION WITH THE EXEMPT INCOME VIDE CIRCULAR NO. 5/2014 READ WITH SECTION 14A READ WITH RULE 8D INTERALIA AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. FIRST APPELLATE CIT(A) ENHANCED THE ASSESSMENT BY INVOKING HIS POWERS U/S 251 OF THE ACT. HE DIRECTED THE ASSESSING OFFICER TO MAKE AN ADDITION OF RS.17,18,00,000/ FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS ERRED IN MAKING AN ADDITION OF RS.17,18,00,000/ - BY ENHANCEMENT OF INCOME. THE ADDITION IS UNCALLED FOR AND HENCE THE SAME BE DELETED. 2) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS TH E POWER ENHANCEMENT OF INCOME WAS NOT APPLICABLE IN THE FACTS OF THE CASE AND HENCE THE SAME BE REVERSED AND THE ADDITION MADE BE DELETED. 3) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS DID NOT EXAMINE THE ASSESSMENT RECORDS AND EXAMINE THE DO CUMENTS RELATING TO SHARE APPLICATION AND HENCE EVEN ON MERITS THE ADDITION OF RS.17,18,00,000/ - WAS UNCALLED FOR AND HENCE THE 4) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION U/ S 68 OF THE IT ACT 00 WAS UNCALLED FOR AND HENCE THE SAME BE DELETED. ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. THE BUSINESS OF INVESTMENTS 11, CORRESPONDING ASSESSMENT YEAR MARCH, 2011 (ASSESSMENT YEAR 2011 - THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, TO A QUERY FROM THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED HE INVESTMENT IS UNQUOTED EQUITY SHARES ARE NOT DIVIDED YIELDING ONE BUT ARE HELD TO QUOTED EQUITY SHARES IS TAXABLE . T HUS THE QUESTION OF INTEREST ON BORROWINGS ATTRIBUTABLE TO SUCH INVESTMENTS DOES NOT ARISE. THE ASSESSING E EXPLANATION OF THE ASSESSEE. HE SUBMISSION GIVEN BY THE ASSESSEE STATED THE RATIONALE OF ITS OFFER, BASED ON FACTS AND LEGAL ASPECTS. THE ASSESSING OFFICER REJECTED THE SAME ON THE GROUND THAT CBDT HAS IN CONNECTION WITH THE EXEMPT INCOME INTERALIA MAKING AN AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. FIRST APPELLATE CIT(A) ENHANCED THE ASSESSMENT BY INVOKING HIS POWERS U/S 251 OF THE ACT. HE DIRECTED THE ASSESSING OFFICER TO MAKE AN ADDITION OF RS.17,18,00,000/ - U/S. 68 OF FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: - 1) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS ERRED IN MAKING AN BY ENHANCEMENT OF INCOME. THE ADDITION IS UNCALLED FOR E POWER ENHANCEMENT OF INCOME WAS NOT APPLICABLE IN THE FACTS OF THE CASE AND HENCE THE SAME BE REVERSED 3) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS DID NOT EXAMINE THE CUMENTS RELATING TO SHARE APPLICATION AND WAS UNCALLED FOR AND HENCE THE 4) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION U/ S 68 OF THE IT ACT 00 WAS UNCALLED FOR AND HENCE THE SAME BE DELETED. 5) THE APPELLANT CRAVES LEAVE TO PRODUCE ADDITIONAL EVIDENCES IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963. 6) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLATE O LEARNED COMMISSIONER OF INCOME TAX APPEALS WAS WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREFORE IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE HENCE IS BAD IN LAW AND BE SET ASIDE. 7) THE APPELLANT CRAVES LEAV WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 4. THE ASSESSEE FILED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL : 1. FOR THAT THE ASSESSING OFFICER ISSUING THE NOTICE U/S NOT HAVE JURISDICTION OVER THE CASE OF THE ASSESSEE HENCE THE NOTICE IS BAD IN LAW AND THE ASSESSMENT ORDER PASSED ON THE BASIS OF SUCH NOTICE IS BAD IN LAW AND SHOULD BE QUASHED. 2. FOR THAT THE ASSESSMENT ORDER WAS PASSED W 143(2) OF THE IT ACT 1961 AND THEREFORE THE ASSESSMENT ORDER PASSED IS BAD IN LAW AND SHOULD BE QUASHED. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER U/S 143(3) OF THE IT ACT 1961 WAS WITH ORDER BE QUASHED AND OR CANCELLED. 4.2. ON THE ADDITIONAL GROUNDS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER TO ISSUE NOTICE U/S 143(2) OF THE ACT AND ALTERNATIVELY, THE JURISDICTION OF THE ASSESSING OFFICER, WHO HAS COM THE ASSESSMENT U/S. 143(3) OF THE ACT. HE SUBMITTED THAT THE JURISDICTIONAL ISSUES GO TO THE ROOT OF THE MATTER AND AS NO FACTS NEED BE ENQUIRED INTO, THE LEGAL GROUNDS MAY BE ADMITTED BY THE ITAT. FOR THIS PROPOSITION, HE RELIED ON THE JUDGMENT OF SUPREME COURT IN THE CASE OF 5.1. THE LD. D/R, COULD NOT CONTROVERT THESE SUBMISSIONS OF THE ASSESSEE. HENCE, WE ADMIT THESE ADDITIONAL GROUNDS OF APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE, SHRI MIRAJ 143(2) & 142(1) OF THE ACT WAS ISSUED BY THE ITO, WARD COMPANY, IN RESPONSE TO THE NOTICE, SUBMITTED MEMORANDUM AND ARTICLE OF ASSOCIATION OF THE COMPANY, COPY OF CERTIFICATE OF INCORPO 3 M/S. WEEDO VENTURES PVT. LTD. 5) THE APPELLANT CRAVES LEAVE TO PRODUCE ADDITIONAL EVIDENCES IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963. 6) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLATE O RDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX APPEALS WAS WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREFORE IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE HENCE IS BAD IN LAW AND BE SET ASIDE. 7) THE APPELLANT CRAVES LEAV E TO PRESS NEW, ADDITIONAL GROUNDS OF APPEAL OR MODIFY, WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. THE ASSESSEE FILED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL : - 1. FOR THAT THE ASSESSING OFFICER ISSUING THE NOTICE U/S 143(2) OF THE IT ACT 1961 DID NOT HAVE JURISDICTION OVER THE CASE OF THE ASSESSEE HENCE THE NOTICE IS BAD IN LAW AND THE ASSESSMENT ORDER PASSED ON THE BASIS OF SUCH NOTICE IS BAD IN LAW AND SHOULD BE 2. FOR THAT THE ASSESSMENT ORDER WAS PASSED W ITHOUT SERVICE OF ANY VALID NOTICE U/S 143(2) OF THE IT ACT 1961 AND THEREFORE THE ASSESSMENT ORDER PASSED IS BAD IN LAW AND 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER U/S 143(3) OF THE IT ACT 1961 WAS WITH OUT JURISDICTION AND BAD IN LAW AND THUS THE ENTIRE ASSESSMENT ORDER BE QUASHED AND OR CANCELLED. ON THE ADDITIONAL GROUNDS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER TO ISSUE NOTICE U/S 143(2) OF THE ACT AND ALTERNATIVELY, THE JURISDICTION OF THE ASSESSING OFFICER, WHO HAS COM THE ASSESSMENT U/S. 143(3) OF THE ACT. HE SUBMITTED THAT THE JURISDICTIONAL ISSUES GO TO THE ROOT OF THE MATTER AND AS NO FACTS NEED BE ENQUIRED INTO, THE LEGAL GROUNDS MAY BE ADMITTED BY THE ITAT. FOR THIS PROPOSITION, HE RELIED ON THE JUDGMENT OF SUPREME COURT IN THE CASE OF NTPC VS. CIT REPORTED AS 229 ITR 383. (SC) THE LD. D/R, COULD NOT CONTROVERT THESE SUBMISSIONS OF THE ASSESSEE. HENCE, WE ADMIT THESE ADDITIONAL GROUNDS OF APPEAL. THE LD. COUNSEL FOR THE ASSESSEE, SHRI MIRAJ D. SHAH, SUBMITTED THAT THE NOTICE U/S 143(2) & 142(1) OF THE ACT WAS ISSUED BY THE ITO, WARD - 5(3), KOLKATA AND THE ASSESSEE COMPANY, IN RESPONSE TO THE NOTICE, SUBMITTED MEMORANDUM AND ARTICLE OF ASSOCIATION OF THE COMPANY, COPY OF CERTIFICATE OF INCORPO RATION DATED 21/07/2010, COPY OF AUDITED ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. 5) THE APPELLANT CRAVES LEAVE TO PRODUCE ADDITIONAL EVIDENCES IN TERMS OF RULE 29 OF RDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX APPEALS WAS WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREFORE IN VIOLATION OF PRINCIPLES OF E TO PRESS NEW, ADDITIONAL GROUNDS OF APPEAL OR MODIFY, WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 143(2) OF THE IT ACT 1961 DID NOT HAVE JURISDICTION OVER THE CASE OF THE ASSESSEE HENCE THE NOTICE IS BAD IN LAW AND THE ASSESSMENT ORDER PASSED ON THE BASIS OF SUCH NOTICE IS BAD IN LAW AND SHOULD BE ITHOUT SERVICE OF ANY VALID NOTICE U/S 143(2) OF THE IT ACT 1961 AND THEREFORE THE ASSESSMENT ORDER PASSED IS BAD IN LAW AND 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER U/S 143(3) OF OUT JURISDICTION AND BAD IN LAW AND THUS THE ENTIRE ASSESSMENT ON THE ADDITIONAL GROUNDS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER TO ISSUE NOTICE U/S 143(2) OF THE ACT AND ALTERNATIVELY, THE JURISDICTION OF THE ASSESSING OFFICER, WHO HAS COM PLETED THE ASSESSMENT U/S. 143(3) OF THE ACT. HE SUBMITTED THAT THE JURISDICTIONAL ISSUES GO TO THE ROOT OF THE MATTER AND AS NO FACTS NEED BE ENQUIRED INTO, THE LEGAL GROUNDS MAY BE ADMITTED BY THE ITAT. FOR THIS PROPOSITION, HE RELIED ON THE JUDGMENT OF THE HONBLE (SC) THE LD. D/R, COULD NOT CONTROVERT THESE SUBMISSIONS OF THE ASSESSEE. HENCE, WE D. SHAH, SUBMITTED THAT THE NOTICE U/S 5(3), KOLKATA AND THE ASSESSEE COMPANY, IN RESPONSE TO THE NOTICE, SUBMITTED MEMORANDUM AND ARTICLE OF ASSOCIATION OF RATION DATED 21/07/2010, COPY OF AUDITED ACCOUNTS AND DETAILS REGARDING SOURCE OF CAPITAL INTRODUCED IN THE OFFICE OF THE ITO WARD 5(3) ON 14/01/2013. THE A/R OF THE ASSESSEE ALSO APPEARED BEFORE THE ITO ON 21/02/2014, EXPLAINING THE RETURN OF INCOME AND A ALONGWITH BANK STATEMENT AND THE SAME WERE EXAMINED. HE SUBMITS THAT ITO, WARD KOLKATA, DID NOT HAVE JURISDICTION OVER THE ASSESSEE. WAS COMPLETED BY THE ITO, WARD ALTERNATIVELY, HE SUBMITTED THAT THE THE ASSESSMENT WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT, WHICH IS BAD IN LAW. HE PRAYED FOR RELIED. 7. THE LD. D/R, SHRI IMOKABA THE LD. COUNSEL FOR THE ASSESSEE THAT THE BY ITO, WARD- 5(3), KOLKATA, WHO DID NOT HAVE JURISDICTION OVER THE ASSESSEE COMPANY AND THAT THE ASSESSMEN T WAS COMPLETED BY THE ITO, WARD NOTICE U/S 143(2) OF THE ACT. 8. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIE BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 9. THE ISSUE OF JURISDICTION OF THE ASSESSEE GOES TO THE ROOT OF THE MATTER. REQUIRE ANY INVESTIGATION INTO FACTS. THUS, WE ADMIT THESE ADDITIONAL GROUNDS. THE UNDISPUTED FACT IN THIS CAS BY THE ITO, WARD- 5(3), KOLKATA. ASSESSMENT IN THIS CASE HAS NOT ISSUED THE MANDATORY NOTICE U/S 143(2) OF THE ACT. ITAT KOLKATA BENCH OF THE TRIBUNA ITA NO. 2634/KOL/2019, ORDER DT. 12/01/2021, FOLLOWS:- 10. IN THIS CASE, THE ITO WARD 04/09/2014. IN REPLY, ON 22/09/2014, THE ASSESSEE WROTE TO THE ITO, WARD STATING THAT HE HAS NO JURISDICTION OVER THE ASSESSEE. THEREAFTER ON 31/07/2015, THE DCIT CIRCLE- 11(1), KOLKATA, HAD ISSUED NOTICE U/S 142(1) OF THE ACT TO THE ASSESSEE. THE DCIT, CIRCLE- 11(1), KOLKATA, COMPLETED ASSESSMENT U/S 143(3) OF THE ACT ON 14/03/2016. THE ISSUE IS WHETHER AN ASSESSMENT ORDER PASSED BY DCIT, CIRCLE 4 M/S. WEEDO VENTURES PVT. LTD. ACCOUNTS AND DETAILS REGARDING SOURCE OF CAPITAL INTRODUCED IN THE OFFICE OF THE ITO WARD 5(3) ON 14/01/2013. THE A/R OF THE ASSESSEE ALSO APPEARED BEFORE THE ITO ON 21/02/2014, EXPLAINING THE RETURN OF INCOME AND A LSO PRODUCED THE BOOKS OF ACCOUNTS ALONGWITH BANK STATEMENT AND THE SAME WERE EXAMINED. HE SUBMITS THAT ITO, WARD KOLKATA, DID NOT HAVE JURISDICTION OVER THE ASSESSEE. THUS, C ONSEQUENTLY THE ASSESSME WAS COMPLETED BY THE ITO, WARD -9(2), KOLKATA U/S 143(3) OF THE ACT ON 03/03/2014. ALTERNATIVELY, HE SUBMITTED THAT THE ASSESSING OFFICER ITO WARD- 9(2), KOLKATA, THE ASSESSMENT WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT, WHICH IS BAD IN LAW. HE THE LD. D/R, SHRI IMOKABA JAMIR, COULD NOT FACTUALLY CONTROVERT THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE NOTICE U/S 143(2) & 142(1) OF THE ACT, WAS ISSUED 5(3), KOLKATA, WHO DID NOT HAVE JURISDICTION OVER THE ASSESSEE COMPANY AND T WAS COMPLETED BY THE ITO, WARD - 9(2), KOLKATA, WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIE BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - THE ISSUE OF JURISDICTION OF THE ASSESSEE GOES TO THE ROOT OF THE MATTER. REQUIRE ANY INVESTIGATION INTO FACTS. THUS, WE ADMIT THESE ADDITIONAL GROUNDS. THE UNDISPUTED FACT IN THIS CAS E IS THAT, THE NOTICE U/S 143(2) OF THE ACT WAS ISSUED 5(3), KOLKATA. THE ITO, WARD 9(2), KOLKATA, WHO COMPLETED THE ASSESSMENT IN THIS CASE HAS NOT ISSUED THE MANDATORY NOTICE U/S 143(2) OF THE ACT. ITAT KOLKATA BENCH OF THE TRIBUNA L IN THE CASE OF HILLMAN HOSIERY MILLS PVT. LTD. VS. DCIT IN ITA NO. 2634/KOL/2019, ORDER DT. 12/01/2021, UNDER SIMILAR CIRCUMSTANCES, HELD AS THIS CASE, THE ITO WARD - 3(3), KOLKATA, ISSUED NOTICE U/S 143(2) OF THE ACT ON 04/09/2014. IN REPLY, ON 22/09/2014, THE ASSESSEE WROTE TO THE ITO, WARD STATING THAT HE HAS NO JURISDICTION OVER THE ASSESSEE. THEREAFTER ON 31/07/2015, THE DCIT 11(1), KOLKATA, HAD ISSUED NOTICE U/S 142(1) OF THE ACT TO THE ASSESSEE. THE DCIT, 11(1), KOLKATA, COMPLETED ASSESSMENT U/S 143(3) OF THE ACT ON 14/03/2016. THE ISSUE IS WHETHER AN ASSESSMENT ORDER PASSED BY DCIT, CIRCLE - 11(1), KOLKATA, IS ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. ACCOUNTS AND DETAILS REGARDING SOURCE OF CAPITAL INTRODUCED IN THE OFFICE OF THE ITO WARD 5(3) ON 14/01/2013. THE A/R OF THE ASSESSEE ALSO APPEARED BEFORE THE ITO ON LSO PRODUCED THE BOOKS OF ACCOUNTS ALONGWITH BANK STATEMENT AND THE SAME WERE EXAMINED. HE SUBMITS THAT ITO, WARD -5(3), ONSEQUENTLY THE ASSESSME NT 143(3) OF THE ACT ON 03/03/2014. 9(2), KOLKATA, COMPLETED THE ASSESSMENT WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT, WHICH IS BAD IN LAW. HE JAMIR, COULD NOT FACTUALLY CONTROVERT THE SUBMISSIONS OF NOTICE U/S 143(2) & 142(1) OF THE ACT, WAS ISSUED 5(3), KOLKATA, WHO DID NOT HAVE JURISDICTION OVER THE ASSESSEE COMPANY AND 9(2), KOLKATA, WITHOUT ISSUING WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIE S THE ISSUE OF JURISDICTION OF THE ASSESSEE GOES TO THE ROOT OF THE MATTER. IT DOES NOT REQUIRE ANY INVESTIGATION INTO FACTS. THUS, WE ADMIT THESE ADDITIONAL GROUNDS. E IS THAT, THE NOTICE U/S 143(2) OF THE ACT WAS ISSUED 9(2), KOLKATA, WHO COMPLETED THE ASSESSMENT IN THIS CASE HAS NOT ISSUED THE MANDATORY NOTICE U/S 143(2) OF THE ACT. THE HILLMAN HOSIERY MILLS PVT. LTD. VS. DCIT IN UNDER SIMILAR CIRCUMSTANCES, HELD AS 3(3), KOLKATA, ISSUED NOTICE U/S 143(2) OF THE ACT ON 04/09/2014. IN REPLY, ON 22/09/2014, THE ASSESSEE WROTE TO THE ITO, WARD -3(3), KOLKATA, STATING THAT HE HAS NO JURISDICTION OVER THE ASSESSEE. THEREAFTER ON 31/07/2015, THE DCIT , 11(1), KOLKATA, HAD ISSUED NOTICE U/S 142(1) OF THE ACT TO THE ASSESSEE. THE DCIT, 11(1), KOLKATA, COMPLETED ASSESSMENT U/S 143(3) OF THE ACT ON 14/03/2016. THE 11(1), KOLKATA, IS VALID AS ADMITTEDLY, HE DID NOT ISSUE A NOTICE U/S 143(2) OF THE ACT, TO THE ASSESSEE. THIS ISSUE IS NO MORE RES- INTEGRA. THIS BENCH OF THE TRIBUNAL IN THE CASE OF SOMA ROY VS. ACIT IN ITA NO. 462/KOL/2019; ASSESSMENT YEAR 2015 CIRCUMSTANCES, HELD AS UNDER: 5. AFTER HEARING RIVAL CONTENTIONS, I ADMIT THIS ADDITIONAL GROUND AS IT IS A LEGAL GROUND, RAISING A JURISDICTIONAL ISSUE AND DOES NOT REQUIRE ANY INVESTIGATION INTO THE FACTS. THE LD. COUNSEL FOR THE A INSTRUCTION NO. 1/2011 [F. NO. 187/12/2010 JURISDICTION OF THE ASSESSEE IS WITH THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE- 1, DURGAPUR, AS THE ASSESSEE IS A NON RETURNED IS ABOVE RS.15,00,000/ THE ACT, WAS ISSUED ON 29/09/2016, BY THE INCOME TAX OFFICER, WARD DURGAPUR, WHO HAD NO JURISDICTION OF THE CASE. HE SUBMITTED THAT THE ASSESSMENT ORDER WAS P ASSED BY THE ACIT, CIRCLE THE ASSESSEE, BUT HE HAD NOT ISSUED THE NOTICE U/S 143(2) OF THE ACT, WITHIN THE STATUTORY PERIOD PRESCRIBED UNDER THE ACT. THUS, HE SUBMITS THAT THE ASSESSMENT IS BAD IN LAW. 5.1. ON MERITS, HE REBUTTED THE FINDINGS OF THE LOWER AUTHORITIES. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON CERTAIN CASE WHEN NECESSARY. 6. THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE CONCURRENT JURISDICTION VEST S WITH THE ITO AS WELL AS THE ACIT AND HENCE THE ASSESSMENT CANNOT BE ANNULLED SIMPLY BECAUSE THE STATUTORY NOTICE U/S 143(2) OF THE ACT, WAS ISSUED BY THE ITO AND THE ASSESSMENT WAS COMPLETED BY THE ACIT. HE FURTHER SUBMITTED THAT THE ASSESSEE DID NOT OBJ ECT TO THE ISSUE OF NOTICE BEFORE THE JURISDICTIONAL ASSESSING OFFICER AND EVEN OTHERWISE, SECTION 292BB OF THE ACT, COMES INTO PLAY AND THE ASSESSMENT CANNOT BE ANNULLED. ON MERITS, HE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 7. I HAVE HEARD RIVAL C CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, I HOLD AS FOLLOWS: 8. I FIND THAT THERE IS NO DISPUTE IN THE FACT THAT THE NOTICE ACT DT. 29/09/2016 HAS BEEN ISSUED BY THE ITO, WD WAS TRANSFERRED TO THE JURISDICTION OF THE ACIT ON 11/08/2017. THEREAFTER, NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER HAVING JURIS OF THIS CASE AND WHO HAD COMPLETED THE ASSESSMENT ON 26/12/2017 I.E., ACIT, CIRCLE- 1(1), DURGAPUR. UNDER THESE CIRCUMSTANCES, THE QUESTION IS WHETHER THE ASSESSMENT IS BAD IN LAW FOR WANT OF ISSUAL OF NOTICE U/S 143(2) OF THE ACT. 9. THIS BENCH O IN ITA NO. 2073/KOL/2016 ORDER DT. 27.09.2017, HELD AS FOLLOWS: 5. FROM A PERUSAL OF THE ABOVE INSTRUCTION OF THE CBDT IT IS EVIDENT THAT THE PECUNIARY JURISDICTION CONFERRED BY THE CBDT ON IT CORPORATE RETURNS' FILED WHERE INCOME DECLARED IS ONLY UPTO RS.15 LACS ; AND THE ITO DOESN'T HAVE THE JURISDICTION TO CONDUCT ASSESSMENT IF IT IS ABOVE RS 15 LAKHS. ABOVE RS. 15 LACS INCOME DECLARED BY A NON PECUNIARY JURISDICTION LIES BEFORE AC/DC. IN THIS CASE, ADMITTEDLY, THE ASSESSEE AN INDIVIDUAL (NON CORPORATE PERSON) WHO UNDISPUTEDLY DECLARED INCOME OF RS.50,28,040/ CBDT CIRCULAR (SUPRA). FROM A PERUSAL OF THE ASSESSMENT ORDER, IT REVEALS THAT THE STATUTORY NOTICE U/S. 143(2) OF THE ACT WAS ISSUED BY THE THEN ITO, WARD ON 06.09.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 19.09.2013 AS NOTED BY THE AO. T CASE WAS TRANSFERRED FROM THE ITO, WARD WAS RECEIVED BY THE OFFICE OF THE ACIT, CIRCLE IMMEDIATELY ACIT ISSUED NO AFORESAID FACTS THE FOLLOWING FACTS EMERGED: 5 M/S. WEEDO VENTURES PVT. LTD. ADMITTEDLY, HE DID NOT ISSUE A NOTICE U/S 143(2) OF THE ACT, TO THE ASSESSEE. THIS ISSUE IS NO INTEGRA. THIS BENCH OF THE TRIBUNAL IN THE CASE OF SOMA ROY VS. ACIT IN ITA NO. 462/KOL/2019; ASSESSMENT YEAR 2015 -16, ORDER DT. 8 TH JANUARY, 2 020, UNDER IDENTICAL CIRCUMSTANCES, HELD AS UNDER: - AFTER HEARING RIVAL CONTENTIONS, I ADMIT THIS ADDITIONAL GROUND AS IT IS A LEGAL GROUND, RAISING A JURISDICTIONAL ISSUE AND DOES NOT REQUIRE ANY INVESTIGATION INTO THE FACTS. THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT AS PER BOARD INSTRUCTION NO. 1/2011 [F. NO. 187/12/2010 -IT(A- I)], DT. 31/01/2011, THE JURISDICTION OF THE ASSESSEE IS WITH THE ASSISTANT COMMISSIONER OF INCOME TAX, 1, DURGAPUR, AS THE ASSESSEE IS A NON - CORPORATE ASSESSEE AND RETURNED IS ABOVE RS.15,00,000/ - AND WHEREAS, THE STATUTORY NOTICE U/S 143(2) OF THE ACT, WAS ISSUED ON 29/09/2016, BY THE INCOME TAX OFFICER, WARD DURGAPUR, WHO HAD NO JURISDICTION OF THE CASE. HE SUBMITTED THAT THE ASSESSMENT ASSED BY THE ACIT, CIRCLE - 1(1), DURGAPUR, WHO HAD THE JURISDICTION OVER THE ASSESSEE, BUT HE HAD NOT ISSUED THE NOTICE U/S 143(2) OF THE ACT, WITHIN THE STATUTORY PERIOD PRESCRIBED UNDER THE ACT. THUS, HE SUBMITS THAT THE ASSESSMENT IS MERITS, HE REBUTTED THE FINDINGS OF THE LOWER AUTHORITIES. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON CERTAIN CASE - LAW, WHICH I WOULD BE REFERRING TO AS AND THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE CONCURRENT JURISDICTION S WITH THE ITO AS WELL AS THE ACIT AND HENCE THE ASSESSMENT CANNOT BE ANNULLED SIMPLY BECAUSE THE STATUTORY NOTICE U/S 143(2) OF THE ACT, WAS ISSUED BY THE ITO AND THE ASSESSMENT WAS COMPLETED BY THE ACIT. HE FURTHER SUBMITTED THAT THE ASSESSEE ECT TO THE ISSUE OF NOTICE BEFORE THE JURISDICTIONAL ASSESSING OFFICER AND EVEN OTHERWISE, SECTION 292BB OF THE ACT, COMES INTO PLAY AND THE ASSESSMENT CANNOT BE ANNULLED. ON MERITS, HE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. I HAVE HEARD RIVAL C ONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, I HOLD AS FOLLOWS: - I FIND THAT THERE IS NO DISPUTE IN THE FACT THAT THE NOTICE U/S 143(2) OF THE ACT DT. 29/09/2016 HAS BEEN ISSUED BY THE ITO, WD - 1(1), DURGAPUR. LATER, THE CASE WAS TRANSFERRED TO THE JURISDICTION OF THE ACIT ON 11/08/2017. THEREAFTER, NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER HAVING JURIS OF THIS CASE AND WHO HAD COMPLETED THE ASSESSMENT ON 26/12/2017 I.E., ACIT, 1(1), DURGAPUR. UNDER THESE CIRCUMSTANCES, THE QUESTION IS WHETHER THE ASSESSMENT IS BAD IN LAW FOR WANT OF ISSUAL OF NOTICE U/S 143(2) OF THE ACT. THIS BENCH O F THE TRIBUNAL IN THE CASE OF SHRI SUKUMAR CH. SAHOO VS. ACIT IN ITA NO. 2073/KOL/2016 ORDER DT. 27.09.2017, HELD AS FOLLOWS: - 5. FROM A PERUSAL OF THE ABOVE INSTRUCTION OF THE CBDT IT IS EVIDENT THAT THE PECUNIARY JURISDICTION CONFERRED BY THE CBDT ON IT OS IS IN RESPECT TO THE 'NON CORPORATE RETURNS' FILED WHERE INCOME DECLARED IS ONLY UPTO RS.15 LACS ; AND THE ITO DOESN'T HAVE THE JURISDICTION TO CONDUCT ASSESSMENT IF IT IS ABOVE RS 15 LAKHS. ABOVE RS. 15 LACS INCOME DECLARED BY A NON - CORPORATE PERSON I .E. LIKE ASSESSEE, THE PECUNIARY JURISDICTION LIES BEFORE AC/DC. IN THIS CASE, ADMITTEDLY, THE ASSESSEE AN INDIVIDUAL (NON CORPORATE PERSON) WHO UNDISPUTEDLY DECLARED INCOME OF RS.50,28,040/ - IN HIS RETURN OF INCOME CANNOT BE ASSESSED BY THE ITO AS PER THE CBDT CIRCULAR (SUPRA). FROM A PERUSAL OF THE ASSESSMENT ORDER, IT REVEALS THAT THE STATUTORY NOTICE U/S. 143(2) OF THE ACT WAS ISSUED BY THE THEN ITO, WARD ON 06.09.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 19.09.2013 AS NOTED BY THE AO. T HE AO NOTED THAT SINCE THE RETURNED INCOME IS MORE THAN RS. 15 LACS THE CASE WAS TRANSFERRED FROM THE ITO, WARD -1, HALDIA TO ACIT, CIRCLE- 27 AND THE SAME WAS RECEIVED BY THE OFFICE OF THE ACIT, CIRCLE - 27, HALDIA ON 24.09.2014 AND IMMEDIATELY ACIT ISSUED NO TICE U/S. 142(1) OF THE ACT ON THE SAME DAY. FROM THE AFORESAID FACTS THE FOLLOWING FACTS EMERGED: ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. ADMITTEDLY, HE DID NOT ISSUE A NOTICE U/S 143(2) OF THE ACT, TO THE ASSESSEE. THIS ISSUE IS NO INTEGRA. THIS BENCH OF THE TRIBUNAL IN THE CASE OF SOMA ROY VS. ACIT IN ITA NO. 020, UNDER IDENTICAL AFTER HEARING RIVAL CONTENTIONS, I ADMIT THIS ADDITIONAL GROUND AS IT IS A LEGAL GROUND, RAISING A JURISDICTIONAL ISSUE AND DOES NOT REQUIRE ANY INVESTIGATION SSESSEE SUBMITTED THAT AS PER BOARD I)], DT. 31/01/2011, THE JURISDICTION OF THE ASSESSEE IS WITH THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE ASSESSEE AND THE INCOME AND WHEREAS, THE STATUTORY NOTICE U/S 143(2) OF THE ACT, WAS ISSUED ON 29/09/2016, BY THE INCOME TAX OFFICER, WARD -1(1), DURGAPUR, WHO HAD NO JURISDICTION OF THE CASE. HE SUBMITTED THAT THE ASSESSMENT 1(1), DURGAPUR, WHO HAD THE JURISDICTION OVER THE ASSESSEE, BUT HE HAD NOT ISSUED THE NOTICE U/S 143(2) OF THE ACT, WITHIN THE STATUTORY PERIOD PRESCRIBED UNDER THE ACT. THUS, HE SUBMITS THAT THE ASSESSMENT IS MERITS, HE REBUTTED THE FINDINGS OF THE LOWER AUTHORITIES. THE LD. COUNSEL LAW, WHICH I WOULD BE REFERRING TO AS AND THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE CONCURRENT JURISDICTION S WITH THE ITO AS WELL AS THE ACIT AND HENCE THE ASSESSMENT CANNOT BE ANNULLED SIMPLY BECAUSE THE STATUTORY NOTICE U/S 143(2) OF THE ACT, WAS ISSUED BY THE ITO AND THE ASSESSMENT WAS COMPLETED BY THE ACIT. HE FURTHER SUBMITTED THAT THE ASSESSEE ECT TO THE ISSUE OF NOTICE BEFORE THE JURISDICTIONAL ASSESSING OFFICER AND EVEN OTHERWISE, SECTION 292BB OF THE ACT, COMES INTO PLAY AND THE ASSESSMENT CANNOT BE ANNULLED. ON MERITS, HE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. ONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES U/S 143(2) OF THE 1(1), DURGAPUR. LATER, THE CASE WAS TRANSFERRED TO THE JURISDICTION OF THE ACIT ON 11/08/2017. THEREAFTER, NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER HAVING JURIS DICTION OF THIS CASE AND WHO HAD COMPLETED THE ASSESSMENT ON 26/12/2017 I.E., ACIT, 1(1), DURGAPUR. UNDER THESE CIRCUMSTANCES, THE QUESTION IS WHETHER THE ASSESSMENT IS BAD IN LAW FOR WANT OF ISSUAL OF NOTICE U/S 143(2) OF THE ACT. F THE TRIBUNAL IN THE CASE OF SHRI SUKUMAR CH. SAHOO VS. ACIT 5. FROM A PERUSAL OF THE ABOVE INSTRUCTION OF THE CBDT IT IS EVIDENT THAT THE OS IS IN RESPECT TO THE 'NON CORPORATE RETURNS' FILED WHERE INCOME DECLARED IS ONLY UPTO RS.15 LACS ; AND THE ITO DOESN'T HAVE THE JURISDICTION TO CONDUCT ASSESSMENT IF IT IS ABOVE RS 15 LAKHS. ABOVE .E. LIKE ASSESSEE, THE PECUNIARY JURISDICTION LIES BEFORE AC/DC. IN THIS CASE, ADMITTEDLY, THE ASSESSEE AN INDIVIDUAL (NON CORPORATE PERSON) WHO UNDISPUTEDLY DECLARED INCOME OF IN HIS RETURN OF INCOME CANNOT BE ASSESSED BY THE ITO AS PER THE CBDT CIRCULAR (SUPRA). FROM A PERUSAL OF THE ASSESSMENT ORDER, IT REVEALS THAT THE STATUTORY NOTICE U/S. 143(2) OF THE ACT WAS ISSUED BY THE THEN ITO, WARD -1, HALDIA ON 06.09.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 19.09.2013 AS NOTED BY HE AO NOTED THAT SINCE THE RETURNED INCOME IS MORE THAN RS. 15 LACS THE 27 AND THE SAME 27, HALDIA ON 24.09.2014 AND TICE U/S. 142(1) OF THE ACT ON THE SAME DAY. FROM THE I) THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING RS.50,28,040/ NOTICE UNDER II) THE ITO, WARD LACS TRANSFERRED THE CASE TO ACIT, CIRCLE III) ON 24.09.2014 STATUTORY NOTICES FOR SCRUTINY WERE ISSUED BY ACIT, CIRCLE HALDIA. 6. WE NOTE THAT THE CBDT INSTRUCTION IS DATED 31.01.2011 AND THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 29.03.2013 DECLARING TOTAL INCOME OF RS.50,28,040/ P ER THE CBDT INSTRUCTION THE MONETARY LIMITS IN RESPECT TO AN ASSESSEE WHO IS AN INDIVIDUAL WHICH FALLS UNDER THE CATEGORY OF 'NON CORPORATE RETURNS' THE ITO'S INCREASED MONETARY LIMIT WAS UPTO RS.15 LACS; AND IF THE RETURNED INCOME IS ABOVE RS. 15 LACS IT INDIVIDUAL IS ABOVE RS.15 LAKH, THEN THE JURISDICTION TO ASSESS THE ASSESSEE LIES ONLY BY AC/DC AND NOT ITO. SO, THEREFORE, ONLY THE AC/DC HAD THE JURISDICTION TO ASSESS THE ASSESSEE. IT IS SETTLE QUA NON FOR AN ASSESSMENT TO BE MADE U/S. 143(3) OF THE ACT. IN THIS CASE, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 06.09.2013 BY ITO, WARD DID NOT HAVE THE PECUNIARY JURISD ADMITTEDLY, WHEN THE ITO REALIZED THAT HE DID NOT HAD THE PECUNIARY JURISDICTION TO ISSUE NOTICE HE DULY TRANSFERRED THE FILE TO THE ACIT, CIRCLE 2014 WHEN THE ACIT ISSUED STATUTORY NOTIC PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. WE NOTE THAT THE ACIT BY ASSUMING THE JURISDICTION AFTER THE TIME PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT NOTICE BECAME QOARUM NON JUDICE AFTER THE BY THE STATUTE WAS CROSSED BY HIM. THEREFORE, THE ISSUANCE OF NOTICE BY THE ACIT, CIRCLE- 27, HALDIA AFTER THE LIMITATION PERIOD FOR ISSUANCE OF STATUTORY NOTICE U/S. 143(2) OF THE ACT HAS SET IN, GOES TO THE ROOT OF THE CASE AND MAKE THE EYES OF LAW AND CONSEQUENTIAL ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT IS NOT VALID IN THE EYES OF LAW AND, THEREFORE, IS NULL AND VOID IN THE EYES OF LAW. THEREFORE, THE LEGAL ISSUE RAISED BY THE ASSESSEE IS ALLOWED. SINCE WE THE ASSESSMENT AND THE APPEAL OF ASSESSEE IS ALLOWED ON THE LEGAL ISSUE, THE OTHER GROUNDS RAISED BY THE ASSESSEE NEED NOT TO BE ADJUDICATED BECAUSE IT IS ONLY ACADEMIC. THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 9.1. THIS BENCH OF THE TRIBUNAL IN THE CASE OF KRISHNENDU CHOWDHURY VS. ITO REPORTED IN [2017] 78 TAXMANN.COM 89 (KOLKATA RETURN OF INCOME OF ASSESSEE WAS RS. 12 LAKHS JURISDICTION FOR SCRUTINY ASSESSMENT VESTED IN INCOME UNDER SECTION 143(2) MUST BE ISSUED BY INCOME AND NONE OTHER MUCH AFTER CBDT'S INSTRUCTION AND KNOWING FULLY WELL THAT HE HAD NO JURISDICTION OVER ASSESSEE COMMISSIONER WAS INVALID AND CONSEQUENTLY ASSESSMENT FRAMED BY INCOME TAX OFFICERS BECOMES VOID SINCE ISSUE OF NOT DONE BY INCOME 9.2. THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF WEST BENGAL STATE ELECTRICITY BOARD VS. DEPUTY COMMISSIONER OF INCOME TAX, SPECIAL RANGE REPORTED IN [2005] 278 ITR 218 (CAL.) HAS HELD AS FOLLOWS: SECTION 254 OF THE INCOME YEARS 1983 AUTHORITIES AND WHICH WEN TRIBUNAL - DATE OF ACCRUAL OF CAUSE OF ACTION BUT ON DATE WHEN IT IS INITIATED ONCE A PARTICULAR JU RETROSPECTIVE AND IT HAS TO BE INTERPRETED HAVING REGARD TO MANNER IN WHICH IT HAS BEEN SOUGHT TO BE CREATED 6 M/S. WEEDO VENTURES PVT. LTD. I) THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING RS.50,28,040/ - NOTICE UNDER SECTION 143(2) OF THE ACT ON 06.09.2013. II) THE ITO, WARD - 1, HALDIA TAKING NOTE THAT THE INCOME RETURNED WAS ABOVE RS. 15 LACS TRANSFERRED THE CASE TO ACIT, CIRCLE -27, HALDIA ON 24.09.2014. III) ON 24.09.2014 STATUTORY NOTICES FOR SCRUTINY WERE ISSUED BY ACIT, CIRCLE 6. WE NOTE THAT THE CBDT INSTRUCTION IS DATED 31.01.2011 AND THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 29.03.2013 DECLARING TOTAL INCOME OF RS.50,28,040/ ER THE CBDT INSTRUCTION THE MONETARY LIMITS IN RESPECT TO AN ASSESSEE WHO IS AN INDIVIDUAL WHICH FALLS UNDER THE CATEGORY OF 'NON CORPORATE RETURNS' THE ITO'S INCREASED MONETARY LIMIT WAS UPTO RS.15 LACS; AND IF THE RETURNED INCOME IS ABOVE RS. 15 LACS IT WAS THE AC/DC. SO, SINCE THE RETURNED INCOME BY ASSESSEE AN INDIVIDUAL IS ABOVE RS.15 LAKH, THEN THE JURISDICTION TO ASSESS THE ASSESSEE LIES ONLY BY AC/DC AND NOT ITO. SO, THEREFORE, ONLY THE AC/DC HAD THE JURISDICTION TO ASSESS THE ASSESSEE. IT IS SETTLE D LAW THAT SERVING OF NOTICE U/S. 143(2) OF THE ACT IS A SINE QUA NON FOR AN ASSESSMENT TO BE MADE U/S. 143(3) OF THE ACT. IN THIS CASE, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 06.09.2013 BY ITO, WARD - 1, HALDIA WHEN HE DID NOT HAVE THE PECUNIARY JURISD ICTION TO ASSUME JURISDICTION AND ISSUE NOTICE. ADMITTEDLY, WHEN THE ITO REALIZED THAT HE DID NOT HAD THE PECUNIARY JURISDICTION TO ISSUE NOTICE HE DULY TRANSFERRED THE FILE TO THE ACIT, CIRCLE - 27, HALDIA ON 24.09. 2014 WHEN THE ACIT ISSUED STATUTORY NOTIC E WHICH WAS BEYOND THE TIME LIMIT PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. WE NOTE THAT THE ACIT BY ASSUMING THE JURISDICTION AFTER THE TIME PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT NOTICE BECAME QOARUM NON JUDICE AFTER THE LIMITATION PRESCRIBED BY THE STATUTE WAS CROSSED BY HIM. THEREFORE, THE ISSUANCE OF NOTICE BY THE ACIT, 27, HALDIA AFTER THE LIMITATION PERIOD FOR ISSUANCE OF STATUTORY NOTICE U/S. 143(2) OF THE ACT HAS SET IN, GOES TO THE ROOT OF THE CASE AND MAKE S THE NOTICE BAD IN THE EYES OF LAW AND CONSEQUENTIAL ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT IS NOT VALID IN THE EYES OF LAW AND, THEREFORE, IS NULL AND VOID IN THE EYES OF LAW. THEREFORE, THE LEGAL ISSUE RAISED BY THE ASSESSEE IS ALLOWED. SINCE WE THE ASSESSMENT AND THE APPEAL OF ASSESSEE IS ALLOWED ON THE LEGAL ISSUE, THE OTHER GROUNDS RAISED BY THE ASSESSEE NEED NOT TO BE ADJUDICATED BECAUSE IT IS ONLY ACADEMIC. THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. THIS BENCH OF THE TRIBUNAL IN THE CASE OF KRISHNENDU CHOWDHURY VS. ITO REPORTED IN [2017] 78 TAXMANN.COM 89 (KOLKATA - TRIB.) HELD AS FOLLOWS: RETURN OF INCOME OF ASSESSEE WAS RS. 12 LAKHS - AS PER CBDT INSTRUCTION, JURISDICTION FOR SCRUTINY ASSESSMENT VESTED IN INCOME - TAX OFFICER AND NOTICE UNDER SECTION 143(2) MUST BE ISSUED BY INCOME - TAX OFFICER, WARD AND NONE OTHER - BUT, NOTICE WAS ISSUED BY ASSTT. COMMISSIONER, CIRCLE HALDIA MUCH AFTER CBDT'S INSTRUCTION AND KNOWING FULLY WELL THAT HE HAD NO JURISDICTION OVER ASSESSEE - WHETHER, THEREFORE, NOTICE ISSUED BY ASSTT. COMMISSIONER WAS INVALID AND CONSEQUENTLY ASSESSMENT FRAMED BY INCOME TAX OFFICERS BECOMES VOID SINCE ISSUE OF NOT ICE UNDER SECTION 143(2) WAS NOT DONE BY INCOME - TAX OFFICERS AS SPECIFIED IN CBDT INSTRUCTION NO. 1/2011. THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF WEST BENGAL STATE ELECTRICITY BOARD VS. DEPUTY COMMISSIONER OF INCOME TAX, SPECIAL RANGE REPORTED IN [2005] 278 ITR 218 (CAL.) HAS HELD AS FOLLOWS: - SECTION 254 OF THE INCOME -TAX ACT, 1961 - APPELLATE TRIBUNAL - POWERS OF YEARS 1983 -84 TO 1987-88 - WHETHER A QUESTION OF LAW ARISING OUT OF FACTS FOUND BY AUTHORITIES AND WHICH WEN T TO ROOT OF JURISDICTION CAN BE RAISED FOR FIRST TIME BEFORE - HELD, YESWHETHER JURISDICTION OF ASSESSING AUTHORITY IS NOT DEPENDENT ON DATE OF ACCRUAL OF CAUSE OF ACTION BUT ON DATE WHEN IT IS INITIATED - HELD, YES ONCE A PARTICULAR JU RISDICTION IS CREATED, SAME MUST BE PROSPECTIVE AND CANNOT BE RETROSPECTIVE AND IT HAS TO BE INTERPRETED HAVING REGARD TO MANNER IN WHICH IT HAS BEEN SOUGHT TO BE CREATED - HELD, YES ASSESSEE ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. - . THE ITO ISSUED 1, HALDIA TAKING NOTE THAT THE INCOME RETURNED WAS ABOVE RS. 15 III) ON 24.09.2014 STATUTORY NOTICES FOR SCRUTINY WERE ISSUED BY ACIT, CIRCLE -27, 6. WE NOTE THAT THE CBDT INSTRUCTION IS DATED 31.01.2011 AND THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 29.03.2013 DECLARING TOTAL INCOME OF RS.50,28,040/ -. AS ER THE CBDT INSTRUCTION THE MONETARY LIMITS IN RESPECT TO AN ASSESSEE WHO IS AN INDIVIDUAL WHICH FALLS UNDER THE CATEGORY OF 'NON CORPORATE RETURNS' THE ITO'S INCREASED MONETARY LIMIT WAS UPTO RS.15 LACS; AND IF THE RETURNED INCOME IS ABOVE WAS THE AC/DC. SO, SINCE THE RETURNED INCOME BY ASSESSEE AN INDIVIDUAL IS ABOVE RS.15 LAKH, THEN THE JURISDICTION TO ASSESS THE ASSESSEE LIES ONLY BY AC/DC AND NOT ITO. SO, THEREFORE, ONLY THE AC/DC HAD THE JURISDICTION TO ASSESS D LAW THAT SERVING OF NOTICE U/S. 143(2) OF THE ACT IS A SINE QUA NON FOR AN ASSESSMENT TO BE MADE U/S. 143(3) OF THE ACT. IN THIS CASE, NOTICE 1, HALDIA WHEN HE ICTION TO ASSUME JURISDICTION AND ISSUE NOTICE. ADMITTEDLY, WHEN THE ITO REALIZED THAT HE DID NOT HAD THE PECUNIARY JURISDICTION TO 27, HALDIA ON 24.09. E WHICH WAS BEYOND THE TIME LIMIT PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. WE NOTE THAT THE ACIT BY ASSUMING THE JURISDICTION AFTER THE TIME PRESCRIBED FOR ISSUANCE OF NOTICE U/S. LIMITATION PRESCRIBED BY THE STATUTE WAS CROSSED BY HIM. THEREFORE, THE ISSUANCE OF NOTICE BY THE ACIT, 27, HALDIA AFTER THE LIMITATION PERIOD FOR ISSUANCE OF STATUTORY NOTICE U/S. S THE NOTICE BAD IN THE EYES OF LAW AND CONSEQUENTIAL ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT IS NOT VALID IN THE EYES OF LAW AND, THEREFORE, IS NULL AND VOID IN THE EYES OF LAW. THEREFORE, THE LEGAL ISSUE RAISED BY THE ASSESSEE IS ALLOWED. SINCE WE HAVE QUASHED THE ASSESSMENT AND THE APPEAL OF ASSESSEE IS ALLOWED ON THE LEGAL ISSUE, THE OTHER GROUNDS RAISED BY THE ASSESSEE NEED NOT TO BE ADJUDICATED BECAUSE IT IS ONLY ACADEMIC. THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. THIS BENCH OF THE TRIBUNAL IN THE CASE OF KRISHNENDU CHOWDHURY VS. ITO TRIB.) HELD AS FOLLOWS: - AS PER CBDT INSTRUCTION, TAX OFFICER AND NOTICE TAX OFFICER, WARD -I, HALDIA BUT, NOTICE WAS ISSUED BY ASSTT. COMMISSIONER, CIRCLE HALDIA MUCH AFTER CBDT'S INSTRUCTION AND KNOWING FULLY WELL THAT HE HAD NO WHETHER, THEREFORE, NOTICE ISSUED BY ASSTT. COMMISSIONER WAS INVALID AND CONSEQUENTLY ASSESSMENT FRAMED BY INCOME - ICE UNDER SECTION 143(2) WAS NOT TAX OFFICERS AS SPECIFIED IN CBDT INSTRUCTION NO. 1/2011. THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF WEST BENGAL STATE ELECTRICITY BOARD VS. DEPUTY COMMISSIONER OF INCOME TAX, SPECIAL RANGE I, POWERS OF - ASSESSMENT WHETHER A QUESTION OF LAW ARISING OUT OF FACTS FOUND BY T TO ROOT OF JURISDICTION CAN BE RAISED FOR FIRST TIME BEFORE HELD, YESWHETHER JURISDICTION OF ASSESSING AUTHORITY IS NOT DEPENDENT ON HELD, YES - WHETHER RISDICTION IS CREATED, SAME MUST BE PROSPECTIVE AND CANNOT BE RETROSPECTIVE AND IT HAS TO BE INTERPRETED HAVING REGARD TO MANNER IN WHICH IT HAS 9.3. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. LAXMAN [2019] 108 TAXMANN.COM 183 (SC), HELD AS FOLLOWS: 7. A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHICH IS REQUIRED TO BE SERVED UPON WAS DULY SERVED AND (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE RES PONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION 292BB WOULD BE A COMPLETE ANSWER. ON THE OTHER HAND, MR. ANKIT VIJAYWARGIA, LEARNED ADVOCATE, APPEARING FOR THE RESPONDENT SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS FROM THE ORDERS PASSED ON RECORD AS WELL AS THE STAND TAKEN BY THE APPELLANT IN THE MEMO OF APPEAL. IT WAS FURTHER SUBMITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING PREREQUISITE, IN THE ABSENCE OF SUCH N 8. THE LAW ON THE POINT AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN HOTEL BLUE MOON'S CASE (SUPRA). THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 292BB OF 9. ACCORDING TO SECTION 292BB OF THE ACT, IF THE ASSESSEE HAD PARTICIPATED IN THE PROCEEDINGS, BY WAY OF LEGAL FICTION, NOTICE WOULD BE DEEMED TO BE VALID EVEN IF THERE BE INFRACTIONS AS DETAILED IN SAID SECTION. THE SCOPE OF THE PROVISION IS TO M INFIRMITIES TO BE PROPER AND VALID IF THERE WAS REQUISITE PARTICIPATION ON PART OF THE ASSESSEE. IT IS, HOWEVER, TO BE NOTED THAT THE SECTION DOES NOT SAVE COMPLETE ABSENCE OF NOTICE. FOR SECTION 292BB TO APPLY, THE NOT INFIRMITIES IN THE MANNER OF SERVICE OF NOTICE THAT THE SECTION SEEKS TO CURE. THE SECTION IS NOT INTENDED TO CURE COMPLETE ABSENCE OF NOTICE ITSELF. 10. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW AND APPLYING THE SAME TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSMENT ORDER IS BAD IN LAW FOR THE REASON THAT THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE, HAS NOT ISSUED A NOTICE U/S 143(2) OF THE NOTICE ISSUE BY THE OFFICER HAVING NO JURISDICTION OF THE ASSESSEE IS NULL AND VOID. WHEN A NOTICE IS ISSUED BY AN OFFICER HAVING NO JURISDICTION, SECTION 292BB OF THE ACT, DOES NOT COMES INTO PLAY. COMING TO THE ARGUMENT OF U/S 124(3) OF THE ACT HAS TO BE TAKEN BY THE ASSESSEE ON RECTIFYING NOTICE U/S 143(2) OF THE ACT FROM A NON NOT ADJUDICATE THIS ISSUE, AS I HAVE HELD THAT NON OF THE ACT BY THE JURISDICTIONAL ASSESSING OFFICER MAKES THE ASSESSMENT BAD IN LAW. UNDER THESE CIRCUMSTANCES, WE ALLOW THIS APPEAL OF THE ASSESSEE. 11. RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LAID DOWN BY THE OF THE TRIBUNAL, CITED ABOVE, WE HAVE TO NECESSARILY HOLD THAT THE NOTICE U/S 143(2) OF THE ACT, ISSUED BY THE ASSESSING OFFICER NOT LEGAL SANCTITY AND IS VOID 12. THE HONBL E CALCUTTA HIGH COURT IN THE CASE OF (409 ITR 132) FOLLOWED THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON REPORTED IN 9. IN THE LIGHT OF THE ABOVE DISCUSSION, PARTICULARLY TAKING INTO CONSIDERATION THE LAW LAID DOWN BY THE SUPREME COURT IN HOTEL BLUE MOON (SUPRA), IT IS INESCAPABLE THAT THE ISSUANCE OF A NOTICE UNDER SECTION 143(2) OF THE ACT IS MANDATORY IF THE ASSESSING O SEEKS NOT TO ACCEPT ANY PART OF THE RETURN AS FURNISHED BY THE ASSESSEE OR MAKE AN 7 M/S. WEEDO VENTURES PVT. LTD. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. LAXMAN DAS KHANDELWAL [2019] 108 TAXMANN.COM 183 (SC), HELD AS FOLLOWS: - A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHICH IS REQUIRED TO BE SERVED UPON WAS DULY SERVED AND THE ASSESSEE WOULD BE PRECLUDED FROM TAKING ANY OBJECTIONS THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE PONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION 292BB WOULD BE A COMPLETE ANSWER. ON THE OTHER HAND, MR. ANKIT VIJAYWARGIA, LEARNED ADVOCATE, APPEARING FOR THE RESPONDENT SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER ISSUED WHICH WAS EVIDENT FROM THE ORDERS PASSED ON RECORD AS WELL AS THE STAND TAKEN BY THE APPELLANT IN THE MEMO OF APPEAL. IT WAS FURTHER SUBMITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING PREREQUISITE, IN THE ABSENCE OF SUCH N OTICE, THE ENTIRE PROCEEDINGS WOULD BE INVALID. THE LAW ON THE POINT AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN HOTEL BLUE MOON'S CASE (SUPRA). THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 292BB OF THE ACT. ACCORDING TO SECTION 292BB OF THE ACT, IF THE ASSESSEE HAD PARTICIPATED IN THE PROCEEDINGS, BY WAY OF LEGAL FICTION, NOTICE WOULD BE DEEMED TO BE VALID EVEN IF THERE BE INFRACTIONS AS DETAILED IN SAID SECTION. THE SCOPE OF THE PROVISION IS TO M AKE SERVICE OF NOTICE HAVING CERTAIN INFIRMITIES TO BE PROPER AND VALID IF THERE WAS REQUISITE PARTICIPATION ON PART OF THE ASSESSEE. IT IS, HOWEVER, TO BE NOTED THAT THE SECTION DOES NOT SAVE COMPLETE ABSENCE OF NOTICE. FOR SECTION 292BB TO APPLY, THE NOT ICE MUST HAVE EMANATED FROM THE DEPARTMENT. IT IS ONLY THE INFIRMITIES IN THE MANNER OF SERVICE OF NOTICE THAT THE SECTION SEEKS TO CURE. THE SECTION IS NOT INTENDED TO CURE COMPLETE ABSENCE OF NOTICE ITSELF. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN ALL THESE CASE LAW AND APPLYING THE SAME TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSMENT ORDER IS BAD IN LAW FOR THE REASON THAT THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE, HAS NOT ISSUED A NOTICE U/S 143(2) OF THE ACT AS REQUIRED BY THE STATUTE. NOTICE ISSUE BY THE OFFICER HAVING NO JURISDICTION OF THE ASSESSEE IS NULL AND VOID. WHEN A NOTICE IS ISSUED BY AN OFFICER HAVING NO JURISDICTION, SECTION 292BB OF THE ACT, DOES NOT COMES INTO PLAY. COMING TO THE ARGUMENT OF THE LD. D/R THAT OBJECTION U/S 124(3) OF THE ACT HAS TO BE TAKEN BY THE ASSESSEE ON RECTIFYING NOTICE U/S 143(2) OF THE ACT FROM A NON - JURISDICTIONAL ASSESSING OFFICER, I AM OF THE VIEW THAT I NEED NOT ADJUDICATE THIS ISSUE, AS I HAVE HELD THAT NON -ISSUAL OF STATUTORY NOTICE/S 143(2) OF THE ACT BY THE JURISDICTIONAL ASSESSING OFFICER MAKES THE ASSESSMENT BAD IN LAW. UNDER THESE CIRCUMSTANCES, WE ALLOW THIS APPEAL OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LAID DOWN BY THE OF THE TRIBUNAL, CITED ABOVE, WE HAVE TO NECESSARILY HOLD THAT THE NOTICE U/S 143(2) OF THE ACT, ISSUED BY THE ASSESSING OFFICER WHO DOES NOT HAVE JURISDICTION OVER THE ASSESSEE HAS VOID -AB-INITIO . E CALCUTTA HIGH COURT IN THE CASE OF PR. CIT VS. OBEROI HOTELS PVT. LTD. FOLLOWED THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF REPORTED IN [321 ITR 328 (SC)] AND HELD AS FOLLOWS:- IN THE LIGHT OF THE ABOVE DISCUSSION, PARTICULARLY TAKING INTO CONSIDERATION THE LAW LAID DOWN BY THE SUPREME COURT IN HOTEL BLUE MOON (SUPRA), IT IS INESCAPABLE THAT THE ISSUANCE OF A NOTICE UNDER SECTION 143(2) OF THE ACT IS MANDATORY IF THE ASSESSING O SEEKS NOT TO ACCEPT ANY PART OF THE RETURN AS FURNISHED BY THE ASSESSEE OR MAKE AN ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. DAS KHANDELWAL A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHICH IS REQUIRED TO BE SERVED UPON WAS DULY THE ASSESSEE WOULD BE PRECLUDED FROM TAKING ANY OBJECTIONS THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE PONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION 292BB WOULD BE A ON THE OTHER HAND, MR. ANKIT VIJAYWARGIA, LEARNED ADVOCATE, APPEARING FOR THE RESPONDENT NEVER ISSUED WHICH WAS EVIDENT FROM THE ORDERS PASSED ON RECORD AS WELL AS THE STAND TAKEN BY THE APPELLANT IN THE MEMO OF APPEAL. IT WAS FURTHER SUBMITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING OTICE, THE ENTIRE PROCEEDINGS WOULD BE INVALID. THE LAW ON THE POINT AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN HOTEL BLUE MOON'S CASE (SUPRA). THE ISSUE THE ACT. ACCORDING TO SECTION 292BB OF THE ACT, IF THE ASSESSEE HAD PARTICIPATED IN THE PROCEEDINGS, BY WAY OF LEGAL FICTION, NOTICE WOULD BE DEEMED TO BE VALID EVEN IF THERE BE INFRACTIONS AS AKE SERVICE OF NOTICE HAVING CERTAIN INFIRMITIES TO BE PROPER AND VALID IF THERE WAS REQUISITE PARTICIPATION ON PART OF THE ASSESSEE. IT IS, HOWEVER, TO BE NOTED THAT THE SECTION DOES NOT SAVE COMPLETE ABSENCE OF NOTICE. FOR ICE MUST HAVE EMANATED FROM THE DEPARTMENT. IT IS ONLY THE INFIRMITIES IN THE MANNER OF SERVICE OF NOTICE THAT THE SECTION SEEKS TO CURE. THE SECTION IS NOT LAW LAID DOWN IN ALL THESE CASE - LAW AND APPLYING THE SAME TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSMENT ORDER IS BAD IN LAW FOR THE REASON THAT THE ASSESSING OFFICER HAVING JURISDICTION OVER ACT AS REQUIRED BY THE STATUTE. NOTICE ISSUE BY THE OFFICER HAVING NO JURISDICTION OF THE ASSESSEE IS NULL AND VOID. WHEN A NOTICE IS ISSUED BY AN OFFICER HAVING NO JURISDICTION, SECTION 292BB OF THE THE LD. D/R THAT OBJECTION U/S 124(3) OF THE ACT HAS TO BE TAKEN BY THE ASSESSEE ON RECTIFYING NOTICE U/S 143(2) JURISDICTIONAL ASSESSING OFFICER, I AM OF THE VIEW THAT I NEED OF STATUTORY NOTICE/S 143(2) OF THE ACT BY THE JURISDICTIONAL ASSESSING OFFICER MAKES THE ASSESSMENT BAD IN LAW. RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LAID DOWN BY THE CO-ORDINATE BENCH OF THE TRIBUNAL, CITED ABOVE, WE HAVE TO NECESSARILY HOLD THAT THE NOTICE U/S 143(2) OF THE WHO DOES NOT HAVE JURISDICTION OVER THE ASSESSEE HAS PR. CIT VS. OBEROI HOTELS PVT. LTD. FOLLOWED THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. IN THE LIGHT OF THE ABOVE DISCUSSION, PARTICULARLY TAKING INTO CONSIDERATION THE LAW LAID DOWN BY THE SUPREME COURT IN HOTEL BLUE MOON (SUPRA), IT IS INESCAPABLE THAT THE ISSUANCE OF A NOTICE UNDER SECTION 143(2) OF THE ACT IS MANDATORY IF THE ASSESSING O FFICER SEEKS NOT TO ACCEPT ANY PART OF THE RETURN AS FURNISHED BY THE ASSESSEE OR MAKE AN ASSESSMENT ORDER CONTRARY THERETO AND, EVEN IN COURSE OF REASSESSMENT PROCEEDINGS, SUCH NOTICE CANNOT BE DISPENSED WITH. 10. ONE OF THE ARGUMENTS PUT FORTH ON BEHALF REASSESSMENT PROCEEDINGS ONCE A NOTICE IS ISSUED UNDER SECTION 148 OF THE ACT, THE ASSESSEE IS MADE AWARE OF WHAT PART OF THE INCOME OR ON WHAT COUNT THE ASSESSEE'S INCOME IS PERCEIVED TO HAVE ESCAPED ATTENTION. IT IS SU REQUIREMENT OF A NOTICE UNDER SECTION 143(2) MAY BE SOMEWHAT DILUTED, IF NOT UNNECESSARY. APART FROM THE FACT THAT SUCH ARGUMENT CANNOT BE COUNTENANCED IN THE LIGHT OF THE DICTUM IN HOTEL BLUE MOON (SUPRA), IT IS EVIDEN SECTION 143(3) OF THE ACT IS CONSEQUENT UPON A HEARING AND THE PRODUCTION OF EVIDENCE ON SUCH POINTS ON WHICH THE ASSESSING OFFICER MAY HARBOUR DOUBTS AND ARE INDICATED IN HIS NOTICE UNDER SECTION 143(2) OF THE ACT. SECTION 143(3 ASSESSMENT UNDERTAKEN BY THE ASSESSING OFFICER UPON MATERIAL BEING PRODUCED BY THE ASSESSEE ON GROUNDS WHICH ARE INDICATED BY THE ASSESSING OFFICER IN HIS NOTICE UNDER SECTION 143(2) OF THE ACT IN RESPECT WHEREOF THE ASSESSING OR MAY DISAGREE WITH THE RETURN FILED BY THE ASSESSEE. IMPLICIT IN THE WORDING OF SECTION 143(3) OF THE ACT IS THE INDISPENSABILITY OF A NOTICE UNDER SECTION 143(2) THEREOF. 11. APROPOS THE SECOND QUESTION FRAMED ABOVE, IT IS NE ACT BE NOTICED IN ITS ENTIRETY: '292BB NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUMSTANCES WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PR NOTICE WAS- (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAD RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.' 12. EVEN IF THE PROVISION DOES NOT CARRY A NON PROVISION OF GENERAL APPLICATION, IT WOULD BE APPLICABLE IN ALL SITUATIONS; BUT ONLY I FAR AS IT PROCLAIMS TO OPERATE. SECTION 292BB OF THE ACT, READ IN THE CONTEXT OF SEVERAL PROVISIONS OF THE ACT WHICH MANDATORILY REQUIRE NOTICES TO BE ISSUED IN DIVERS SITUATIONS, CANNOT BE SAID TO HAVE DISPENSED WITH THE ISSUANCE OF SUCH NOTICES ALTO 292BB MUST BE UNDERSTOOD TO CURE ANY DEFECT IN THE SERVICE OF THE NOTICE AND NOT AUTHORISE THE DISPENSATION OF A NOTICE WHEN THE APPROPRIATE INTERPRETATION OF A PROVISION MAKES THE NOTICE PROVIDED FOR THEREUNDER TO BE MANDATORY OR INDISPENS 13. THIS IS NOT A CASE WHERE THE ASSESSING OFFICER SAYS THAT A NOTICE HAD BEEN ISSUED AND THERE IS A CONTRADICTION THEREOF BY THE ASSESSEE. IT IS EVIDENT THAT THE ASSESSEE CARRIED THE OBJECTION BEFORE THE COMMISSIONER (APPEALS) AND THE COMMISSIONER BRUSHED AS OBJECTION ON THE GROUND THAT IT WAS A TECHNICALITY WITHOUT ADDRESSING THE ISSUE OR APPLYING HIS MIND TO SUCH ASPECT OF THE MATTER. FURTHER, IT IS EVIDENT FROM THE ORDER 8 M/S. WEEDO VENTURES PVT. LTD. ASSESSMENT ORDER CONTRARY THERETO AND, EVEN IN COURSE OF REASSESSMENT PROCEEDINGS, SUCH NOTICE CANNOT BE DISPENSED WITH. ONE OF THE ARGUMENTS PUT FORTH ON BEHALF OF THE REVENUE IS THAT IN COURSE OF REASSESSMENT PROCEEDINGS ONCE A NOTICE IS ISSUED UNDER SECTION 148 OF THE ACT, THE ASSESSEE IS MADE AWARE OF WHAT PART OF THE INCOME OR ON WHAT COUNT THE ASSESSEE'S INCOME IS PERCEIVED TO HAVE ESCAPED ATTENTION. IT IS SU BMITTED THAT IN SUCH A SCENARIO, THE REQUIREMENT OF A NOTICE UNDER SECTION 143(2) MAY BE SOMEWHAT DILUTED, IF NOT UNNECESSARY. APART FROM THE FACT THAT SUCH ARGUMENT CANNOT BE COUNTENANCED IN THE LIGHT OF THE DICTUM IN HOTEL BLUE MOON (SUPRA), IT IS EVIDEN T THAT AN ASSESSMENT UNDER SECTION 143(3) OF THE ACT IS CONSEQUENT UPON A HEARING AND THE PRODUCTION OF EVIDENCE ON SUCH POINTS ON WHICH THE ASSESSING OFFICER MAY HARBOUR DOUBTS AND ARE INDICATED IN HIS NOTICE UNDER SECTION 143(2) OF THE ACT. SECTION 143(3 ) OF THE ACT CONTEMPLATES AN ASSESSMENT UNDERTAKEN BY THE ASSESSING OFFICER UPON MATERIAL BEING PRODUCED BY THE ASSESSEE ON GROUNDS WHICH ARE INDICATED BY THE ASSESSING OFFICER IN HIS NOTICE UNDER SECTION 143(2) OF THE ACT IN RESPECT WHEREOF THE ASSESSING OFFICER MAY HAVE MISGIVINGS OR MAY DISAGREE WITH THE RETURN FILED BY THE ASSESSEE. IMPLICIT IN THE WORDING OF SECTION 143(3) OF THE ACT IS THE INDISPENSABILITY OF A NOTICE UNDER SECTION 143(2) THEREOF. APROPOS THE SECOND QUESTION FRAMED ABOVE, IT IS NE CESSARY THAT SECTION 292BB OF THE ACT BE NOTICED IN ITS ENTIRETY: '292BB NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUMSTANCES - WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PR OCEEDING OR INQUIRY UNDER THIS ACT THAT THE NOT SERVED UPON HIM; OR NOT SERVED UPON HIM IN TIME; OR SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAD RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.' EVEN IF THE PROVISION DOES NOT CARRY A NON - OBSTANTE CLAUSE, SINCE SECTION 292BB IS A PROVISION OF GENERAL APPLICATION, IT WOULD BE APPLICABLE IN ALL SITUATIONS; BUT ONLY I FAR AS IT PROCLAIMS TO OPERATE. SECTION 292BB OF THE ACT, READ IN THE CONTEXT OF SEVERAL PROVISIONS OF THE ACT WHICH MANDATORILY REQUIRE NOTICES TO BE ISSUED IN DIVERS SITUATIONS, CANNOT BE SAID TO HAVE DISPENSED WITH THE ISSUANCE OF SUCH NOTICES ALTO 292BB MUST BE UNDERSTOOD TO CURE ANY DEFECT IN THE SERVICE OF THE NOTICE AND NOT AUTHORISE THE DISPENSATION OF A NOTICE WHEN THE APPROPRIATE INTERPRETATION OF A PROVISION MAKES THE NOTICE PROVIDED FOR THEREUNDER TO BE MANDATORY OR INDISPENS THIS IS NOT A CASE WHERE THE ASSESSING OFFICER SAYS THAT A NOTICE HAD BEEN ISSUED AND THERE IS A CONTRADICTION THEREOF BY THE ASSESSEE. IT IS EVIDENT THAT THE ASSESSEE CARRIED THE OBJECTION BEFORE THE COMMISSIONER (APPEALS) AND THE COMMISSIONER BRUSHED AS OBJECTION ON THE GROUND THAT IT WAS A TECHNICALITY WITHOUT ADDRESSING THE ISSUE OR APPLYING HIS MIND TO SUCH ASPECT OF THE MATTER. FURTHER, IT IS EVIDENT FROM THE ORDER ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. ASSESSMENT ORDER CONTRARY THERETO AND, EVEN IN COURSE OF REASSESSMENT PROCEEDINGS, SUCH OF THE REVENUE IS THAT IN COURSE OF REASSESSMENT PROCEEDINGS ONCE A NOTICE IS ISSUED UNDER SECTION 148 OF THE ACT, THE ASSESSEE IS MADE AWARE OF WHAT PART OF THE INCOME OR ON WHAT COUNT THE ASSESSEE'S BMITTED THAT IN SUCH A SCENARIO, THE REQUIREMENT OF A NOTICE UNDER SECTION 143(2) MAY BE SOMEWHAT DILUTED, IF NOT UNNECESSARY. APART FROM THE FACT THAT SUCH ARGUMENT CANNOT BE COUNTENANCED IN THE T THAT AN ASSESSMENT UNDER SECTION 143(3) OF THE ACT IS CONSEQUENT UPON A HEARING AND THE PRODUCTION OF EVIDENCE ON SUCH POINTS ON WHICH THE ASSESSING OFFICER MAY HARBOUR DOUBTS AND ARE INDICATED IN ) OF THE ACT CONTEMPLATES AN ASSESSMENT UNDERTAKEN BY THE ASSESSING OFFICER UPON MATERIAL BEING PRODUCED BY THE ASSESSEE ON GROUNDS WHICH ARE INDICATED BY THE ASSESSING OFFICER IN HIS NOTICE UNDER OFFICER MAY HAVE MISGIVINGS OR MAY DISAGREE WITH THE RETURN FILED BY THE ASSESSEE. IMPLICIT IN THE WORDING OF SECTION 143(3) OF THE ACT IS THE INDISPENSABILITY OF A NOTICE UNDER SECTION 143(2) THEREOF. CESSARY THAT SECTION 292BB OF THE WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY INQUIRY BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE OCEEDING OR INQUIRY UNDER THIS ACT THAT THE PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAD RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.' OBSTANTE CLAUSE, SINCE SECTION 292BB IS A PROVISION OF GENERAL APPLICATION, IT WOULD BE APPLICABLE IN ALL SITUATIONS; BUT ONLY I N SO FAR AS IT PROCLAIMS TO OPERATE. SECTION 292BB OF THE ACT, READ IN THE CONTEXT OF SEVERAL PROVISIONS OF THE ACT WHICH MANDATORILY REQUIRE NOTICES TO BE ISSUED IN DIVERS SITUATIONS, CANNOT BE SAID TO HAVE DISPENSED WITH THE ISSUANCE OF SUCH NOTICES ALTO GETHER. SECTION 292BB MUST BE UNDERSTOOD TO CURE ANY DEFECT IN THE SERVICE OF THE NOTICE AND NOT AUTHORISE THE DISPENSATION OF A NOTICE WHEN THE APPROPRIATE INTERPRETATION OF A PROVISION MAKES THE NOTICE PROVIDED FOR THEREUNDER TO BE MANDATORY OR INDISPENS ABLE. THIS IS NOT A CASE WHERE THE ASSESSING OFFICER SAYS THAT A NOTICE HAD BEEN ISSUED AND THERE IS A CONTRADICTION THEREOF BY THE ASSESSEE. IT IS EVIDENT THAT THE ASSESSEE CARRIED THE OBJECTION BEFORE THE COMMISSIONER (APPEALS) AND THE COMMISSIONER BRUSHED AS IDE THE OBJECTION ON THE GROUND THAT IT WAS A TECHNICALITY WITHOUT ADDRESSING THE ISSUE OR APPLYING HIS MIND TO SUCH ASPECT OF THE MATTER. FURTHER, IT IS EVIDENT FROM THE ORDER IMPUGNED PASSED BY THE APPELLATE TRIBUNAL THAT NO NOTICE UNDER SECTION 143(2) O ACT HAD, IN FACT, BEEN ISSUED IN THIS CASE. IN SUCH A SITUATION, WHERE A NOTICE THAT IS MANDATORILY REQUIRED TO BE ISSUED IS FOUND NOT TO HAVE BEEN ISSUED, SECTION 292BB OF THE ACT HAS NO MANNER OF OPERATION. THE TWO SUBSTANTIAL QUESTIONS OF LAW ARE (1) IF THE TIME FOR ISSUANCE OF THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS EXPIRED OR THE TIME FOR COMPLETING THE REASSESSMENT PROCEEDINGS UNDER SECTION 153(2) OF THE ACT HAS RUN OUT, THE FAILURE TO ISSUE SUCH NOTICE THE ENTIRE PROCEEDINGS, INCLUDING ANY ORDER OF ASSESSMENT, TO BE QUASHED. (2) SECTION 292BB OF THE ACT DOES NOT DISPENSE WITH THE ISSUANCE OF ANY NOTICE THAT IS MANDATED TO BE ISSUED UNDER THE ACT, BUT MER NOTICE IF AN OBJECTION IN SUCH REGARD IS NOT TAKEN BEFORE THE COMPLETION OF THE ASSESSMENT OR REASSESSMENT. IN ADDITION, IT IS HELD THAT IN THE LIGHT OF THE SUPREME COURT DICTUM IN HOTEL BLUE MOON (SUPRA), THE VIEW EXPRESSED IN HUMBOLDT WEDAG INDIA (P.) LTD. (SUPRA) IS PER INCURIAM AND, AS SUCH, NOT GOOD LAW. 13. SIMILARLY, THE HONBLE SUPREME COURT IN THE CASE OF [2019] 108 TAXMANN.COM 183 (SC), 7. A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHICH IS REQUIRED TO BE SERVED UPON WAS DULY SERVED AND THE ASSESSEE WOULD BE PRECLUDED FROM TAKING ANY OBJECTIONS THAT THE NO WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE RESPONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION A COMPLETE ANSWER. ON THE OTHER HAND, MR. ANKIT VIJAYWARGIA, LEARNED ADVOCATE, APPEARING FOR THE RESPONDENT SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER ISSUED WHICH WAS EVIDENT FROM THE ORDERS PASSED ON RECORD AS WEL MEMO OF APPEAL. IT WAS FURTHER SUBMITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING PREREQUISITE, IN THE ABSENCE OF SUCH NOTICE, THE ENTIRE PROCEEDINGS WOULD BE INVALID. 8. THE LAW ON THE POIN T AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN HOTEL BLUE MOON'S CASE (SUPRA). THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 292BB OF THE ACT. 14. APPLY ING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE CASE ON HAND, WE HAVE TO NECESSARILY HOLD THAT THE PASSING OF ASSESSMENT ORDER U/S 143(3) OF THE ACT, WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT, KOLKATA, IS BAD IN LAW AND HAS TO BE QUASHED. AS WE HAVE QUASHED THE ASSESSMENT ITSELF ON 9 M/S. WEEDO VENTURES PVT. LTD. IMPUGNED PASSED BY THE APPELLATE TRIBUNAL THAT NO NOTICE UNDER SECTION 143(2) O ACT HAD, IN FACT, BEEN ISSUED IN THIS CASE. IN SUCH A SITUATION, WHERE A NOTICE THAT IS MANDATORILY REQUIRED TO BE ISSUED IS FOUND NOT TO HAVE BEEN ISSUED, SECTION 292BB OF THE ACT HAS NO MANNER OF OPERATION. THE TWO SUBSTANTIAL QUESTIONS OF LAW ARE ANSWERED ACCORDINGLY AS FOLLOWS: IF THE TIME FOR ISSUANCE OF THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS EXPIRED OR THE TIME FOR COMPLETING THE REASSESSMENT PROCEEDINGS UNDER SECTION 153(2) OF THE ACT HAS RUN OUT, THE FAILURE TO ISSUE SUCH NOTICE UNDER SECTION 143(2) OF THE ACT WOULD RESULT IN THE ENTIRE PROCEEDINGS, INCLUDING ANY ORDER OF ASSESSMENT, TO BE QUASHED. SECTION 292BB OF THE ACT DOES NOT DISPENSE WITH THE ISSUANCE OF ANY NOTICE THAT IS MANDATED TO BE ISSUED UNDER THE ACT, BUT MER ELY CURES THE DEFECT OF SERVICE OF SUCH NOTICE IF AN OBJECTION IN SUCH REGARD IS NOT TAKEN BEFORE THE COMPLETION OF THE ASSESSMENT OR REASSESSMENT. IN ADDITION, IT IS HELD THAT IN THE LIGHT OF THE SUPREME COURT DICTUM IN HOTEL BLUE MOON EXPRESSED IN HUMBOLDT WEDAG INDIA (P.) LTD. (SUPRA) IS PER INCURIAM AND, AS SUCH, NOT GOOD LAW. SIMILARLY, THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. LAXMAN DAS KHANDELWAL [2019] 108 TAXMANN.COM 183 (SC), HELD AS FOLLOWS:- A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHICH IS REQUIRED TO BE SERVED UPON WAS DULY SERVED AND THE ASSESSEE WOULD BE PRECLUDED FROM TAKING ANY OBJECTIONS THAT THE NO WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE RESPONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION ON THE OTHER HAND, MR. ANKIT VIJAYWARGIA, LEARNED ADVOCATE, APPEARING FOR THE RESPONDENT SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER ISSUED WHICH WAS EVIDENT FROM THE ORDERS PASSED ON RECORD AS WEL L AS THE STAND TAKEN BY THE APPELLANT IN THE MEMO OF APPEAL. IT WAS FURTHER SUBMITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING PREREQUISITE, IN THE ABSENCE OF SUCH NOTICE, THE ENTIRE PROCEEDINGS WOULD BE T AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN HOTEL BLUE MOON'S CASE (SUPRA). THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 292BB OF THE ACT. ING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE - LAW TO THE FACTS OF THE CASE ON HAND, WE HAVE TO NECESSARILY HOLD THAT THE PASSING OF ASSESSMENT ORDER U/S 143(3) OF THE ACT, WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT, BY THE ITO, WARD IS BAD IN LAW AND HAS TO BE QUASHED. AS WE HAVE QUASHED THE ASSESSMENT ITSELF ON ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. IMPUGNED PASSED BY THE APPELLATE TRIBUNAL THAT NO NOTICE UNDER SECTION 143(2) O F THE ACT HAD, IN FACT, BEEN ISSUED IN THIS CASE. IN SUCH A SITUATION, WHERE A NOTICE THAT IS MANDATORILY REQUIRED TO BE ISSUED IS FOUND NOT TO HAVE BEEN ISSUED, SECTION 292BB OF THE ANSWERED ACCORDINGLY AS FOLLOWS: IF THE TIME FOR ISSUANCE OF THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS EXPIRED OR THE TIME FOR COMPLETING THE REASSESSMENT PROCEEDINGS UNDER SECTION 153(2) OF THE ACT HAS UNDER SECTION 143(2) OF THE ACT WOULD RESULT IN THE ENTIRE PROCEEDINGS, INCLUDING ANY ORDER OF ASSESSMENT, TO BE QUASHED. SECTION 292BB OF THE ACT DOES NOT DISPENSE WITH THE ISSUANCE OF ANY NOTICE THAT IS ELY CURES THE DEFECT OF SERVICE OF SUCH NOTICE IF AN OBJECTION IN SUCH REGARD IS NOT TAKEN BEFORE THE COMPLETION OF THE IN ADDITION, IT IS HELD THAT IN THE LIGHT OF THE SUPREME COURT DICTUM IN HOTEL BLUE MOON EXPRESSED IN HUMBOLDT WEDAG INDIA (P.) LTD. (SUPRA) IS PER INCURIAM CIT VS. LAXMAN DAS KHANDELWAL A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHICH IS REQUIRED TO BE SERVED UPON WAS DULY SERVED AND THE ASSESSEE WOULD BE PRECLUDED FROM TAKING ANY OBJECTIONS THAT THE NO TICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE RESPONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION 292BB WOULD BE ON THE OTHER HAND, MR. ANKIT VIJAYWARGIA, LEARNED ADVOCATE, APPEARING FOR THE RESPONDENT SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER ISSUED WHICH WAS L AS THE STAND TAKEN BY THE APPELLANT IN THE MEMO OF APPEAL. IT WAS FURTHER SUBMITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING PREREQUISITE, IN THE ABSENCE OF SUCH NOTICE, THE ENTIRE PROCEEDINGS WOULD BE T AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN HOTEL BLUE MOON'S CASE (SUPRA). THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 292BB OF THE ACT. LAW TO THE FACTS OF THE CASE ON HAND, WE HAVE TO NECESSARILY HOLD THAT THE PASSING OF ASSESSMENT ORDER U/S BY THE ITO, WARD -9(2), IS BAD IN LAW AND HAS TO BE QUASHED. AS WE HAVE QUASHED THE ASSESSMENT ITSELF ON THE GROUNDS OF JURISDICTION, WE DO NOT CONSIDER THE OTHER ISSUES RAISED BY THE ASSESSEE IT WOULD BE AN ACADEMIC EXERCISE 15. IN THE RESULT, APPEAL OF THE ASSESSEE 16. AS THE FACTS OF THE CASE PARTIES SUBMITTED THAT THE ARGUMENTS FOR ASSESSMENT YEAR 2012 ASSESSMENT YEAR 2011- 12. THUS, WE FOLLOW OUR AND QUASH THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011 17. IN THE RESULT, BOTH THESE APPEALS OF THE ASSESSEE ARE ALLOWED. KOLKATA, THE SD/- [ ABY T. VARKEY ] JUDICIAL MEMBER DATED: 16.04.2021 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S. WEEDO VENTURES PVT. LTD [EARLIER KNOWN AS M/S. EQUAL PROJECTS PROPERTY NO. 11 BLOCK- A, MAHARANA PRATAP ENCLAVE PITAMPURA DELHI - 110034 2. INCOME TAX OFFICER, WARD- 9(2), KOLKATA 3. COMMISSIONER OF INCOME TAX (APPEALS) 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 10 M/S. WEEDO VENTURES PVT. LTD. THE GROUNDS OF JURISDICTION, WE DO NOT CONSIDER THE OTHER ISSUES RAISED BY THE ASSESSEE IT WOULD BE AN ACADEMIC EXERCISE . IN THE RESULT, APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2012 FACTS OF THE CASE FOR THE ASSESSMENT YEAR 2011- 12, PARTIES SUBMITTED THAT THE ARGUMENTS FOR ASSESSMENT YEAR 2012 - 13, HAS TO BE ADOPTED FOR 12. THUS, WE FOLLOW OUR ORDER FOR THE ASSESSMENT YEAR 2012 AND QUASH THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011 - 12, FOR THE SAME REASONS. IN THE RESULT, BOTH THESE APPEALS OF THE ASSESSEE ARE ALLOWED. KOLKATA, THE 16 TH DAY OF APRIL, 2021. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER M/S. WEEDO VENTURES PVT. LTD [EARLIER KNOWN AS M/S. EQUAL PROJECTS PVT. LTD.] A, MAHARANA PRATAP ENCLAVE 9(2), KOLKATA COMMISSIONER OF INCOME TAX (APPEALS) -3, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. WEEDO VENTURES PVT. LTD. THE GROUNDS OF JURISDICTION, WE DO NOT CONSIDER THE OTHER ISSUES RAISED BY THE ASSESSEE , AS THE ASSESSMENT YEAR 2012 -13 IS ALLOWED. 12, ARE IDENTICAL, BOTH 13, HAS TO BE ADOPTED FOR ORDER FOR THE ASSESSMENT YEAR 2012 -13 12, FOR THE SAME REASONS. SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES 11 M/S. WEEDO VENTURES PVT. LTD. ITA NO. 2535/KOL/2019 ASSESSMENT YEAR:- 2011-12 ITA NO. 2129/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. 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