M/s. Simandhar Metro Estate, Ahmedabad V. DCIT, Circle-5(2), Ahmedabad

ITA 280/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2062 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 12-09-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 05-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LALIT JAIN
• Assessee Lawyers: ANIL KSHTRIYA
• Keywords: Invalid notice; Corroborative evidences; Procedural lapse; CHAPTER IV
• Section: 143(3); 142(1); 292BB; 143(2); 13

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER ./ITA NO. 280/AHD/2018 ( / ASSESSMENT YEAR : 2013-14) M/S.SIMANDHAR METRO ESTATE 101, SIMANDHAR AVENUE NR. H.K. HOUSE ASHRAM ROAD AHMEDABAD 380 009 / VS. THE DCIT CIRCLE-5(2) AHMEDABAD-380 009 ./ ./ PAN/GIR NO. : ABRPS 1716 P ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ANIL KSHTRIYA, AR / RESPONDENT BY : SHRI LALIT JAIN, SR.DR / DATE OF HEARING 12/09/2019 !'# / DATE OF PRONOUNCEMENT 06/12/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)AHMEDABAD-5, [CIT(A) IN SHORT] VIDE APPEA L NO. CIT(A)- 5/DCIT CIR. 5(2)/ 635/ 2016-17 DATED 11/12/2017 ARI SING IN THE ASSESSMENT ORDER PASSED UNDER S. 143(3) OF THE INCO ME TAX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 2 9/03/2016 RELEVANT TO ASSESSMENT YEAR (AY) 2013-14. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 2 - 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING THE APPELLANT 'S GROUND ON LEGALITY OF INVALID NOTICE ALLEGED TO HAVE BEEN ISSUED U/S. 143 (2) OF THE ACT BUT COMPLETELY IGNORED THE ESTABLISHED FACTS AVAILABLE ON RECORD THAT THERE WAS NO EFFECTIVE OR VALID SERVICE OF THE SAID NOTICE UPON THE APPELLANT WITHIN THE TIME PRESCRIBED. 1.1 THAT THE LD. CIT(A) HAS GROSSLY ERRED IN MISI NTERPRETING PROVISIONS OF SECTION 292BB BY COMPLETELY IGNORING THE JUDGMENT O F H'BLE COURT IN THE CASE OF HOTEL BLUE MOON (2010) 321ITR 362(SC) AS FOLLOWE D BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SUKHINI P. MODI 2 014 367ITR 862(GUJ.) AND THEREBY FURTHER ERRED IN NOT GIVING ANY FINDING ON THE BINDING JUDGMENT ON THE EFFECT OF NON-SERVICE OF THE NOTICE U/S. 143 (2) AND/OR ITS SERVICE WITHIN PRESCRIBED TIME LIMIT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW THE LD.CIT(A) HAS GROSSLY ERRED IN REJECTING THE APPELLANT'S GROU ND RAISED IN APPEAL THAT GRANTED BY THE A.R. THAT TOO WITHOUT ANY KNOWLEDGE OR CONSENT BY THE APPELLANT FOR AGREEING TO ADDITION CANNOT BE HELD A S A VALID CONSENT, AND THEREFORE, THE APPELLANT SHOULD NOT SUFFER FOR SUCH MISTAKE OR FAILURE ON THE PART OF THE A.R. AS SUCH NO ESTOPPELS SHOULD BE CRE ATED OR HELD, WHEN THE OUGHT TO HAVE ALLOWED THE SAME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN LAW THE LD.CIT(A) HAS GROSSING ERRED IN NOT ADJUDICATING AND DECIDING APPELLANTS SPECIFIC GROUND CHALLENGING BASELESS ADDITION OF RS.10 LAKHS ON ACCOUNT OF DECLINE IN G.P., MADE BY THE A.O. WHEN HE OUGHT TO HAVE INDEPE NDENTLY DECIDED JUDICIALLY. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 3 - 3. THE ASSESSEE IN GROUND NOS. 1 AND 2 HAS CHAL LENGED THE VALIDITY OF THE ASSESSMENT ON THE GROUND THAT THERE WAS NOT ISS UED ANY VALID NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRE SCRIBED UNDER THE PROVISIONS OF LAW. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN T HE PRESENT CASE IS A PARTNERSHIP FORM AND ENGAGED IN THE BUSINESS OF CON STRUCTION OF HOUSING PROJECTS IN AND AROUND THE CITY OF AHMEDABAD. THE A SSESSEE HAS FILED ITS RETURN OF INCOME DATED 26 SEPTEMBER 2013 DECLARING TOTAL INCOME OF 1,07,46,614 WHICH WAS PROCESSED UNDER SECTION 143(1 ) OF THE ACT. SUBSEQUENTLY THE CASE OF THE ASSESSEE WAS SELECTED UNDER SCRUTINY AND ACCORDINGLY THE NOTICE UNDER SECTION 143(2) WAS ISS UED/ SERVED UPON THE ASSESSEE. 4.1. THE ASSESSEE BEFORE THE LEARNED CIT (A) S UBMITTED THAT THE LAST DATE FOR THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT UPON THE ASSESSEE WAS 30 SEPTEMBER 2014 WHEREAS THE NOTICE H AS BEEN ISSUED DATED 4 TH OF SEPTEMBER 2015. ACCORDINGLY THE ASSESSEE CLAIME D THAT THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT DATED 4 SEPTEMBER 2015 IS BARRED BY TIME WHICH CANNOT ALSO BE RECTIFIED UNDER THE PROVISIONS OF SECTION 292BB OF THE ACT. THE ASSESSEE IN SUPPORT O F ITS CONTENTION RELIED ON SEVERAL JUDGMENTS BEFORE THE LEARNED CIT (A). 4.2. THE LEARNED CIT (A) CALLED FOR THE REMAND R EPORT FROM THE AO VIDE LETTER DATED 1 ST OF JUNE 2017 WHETHER THE STATUTORY NOTICE UNDER SE CTION ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 4 - 143(2) OF THE ACT WAS ISSUED WITHIN THE PRESCRIBED TIME. THE AO VIDE LETTER DATED 9 TH OF JUNE 2017 SUBMITTED THAT THE 1 ST NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BY THE ERSTWHILE ITO W ARD 7(3) ON 5 SEPTEMBER 2014 WHICH WAS DULY SERVED UPON THE ASSES SEE. SUBSEQUENTLY THE JURISDICTION OVER THE ASSESSEE WAS ASSIGNED TO CIRCLE 5(2), AHMEDABAD ON ACCOUNT OF RESTRUCTURING. AFTER THAT THE FRESH N OTICES UNDER SECTION 143(2) WERE ISSUED AND SERVED UPON THE ASSESSEE DAT ED 4 SEPTEMBER 2015 AND 5 OCTOBER 2015. 4.3. THE AO IN HIS REMAND REPORT ALSO SUBMITTE D THAT THE ASSESSEE HAS NEVER OBJECTED ON THE VALIDITY OF THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT DURING THE ASSESSMENT PROCEEDINGS. ACCORDIN GLY, THE AO CONTENDED THAT THE ARGUMENT OF THE ASSESSEE FOR THE NON-ISSUANCE/SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT IS NOT AC CEPTABLE. 4.4. THE ASSESSEE IN ITS REBUTTAL DATED 15-7-2 017 BEFORE THE LEARNED CIT (A) REFERRED TO THE POSTAL DELIVERY SLIP FOR TH E ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT DATED 5 SEPTEMBER 2 014 AND POINTED OUT CERTAIN DEFECTS THEREIN AS REPRODUCED VERBATIM HERE -IN-BELOW : IN THIS CONNECTION, THE APPELLANT WOULD LIKE TO SUB MIT AS FOLLOWS:- (A) FIRST AND FOREMOST, AS MAY BE PERUSED FROM THE SO-CALLED POSTAL DELIVERY SLIP, THE MOST CRUCIAL POINT IS THAT AT THE APPROPRIAT E COLUMN (COL. 29), THE DATE OF DELIVERY AND (COL. 30) TIME OF DELIVERY, BOTH ARE L YING BLANK. (B) SECONDLY, THE OFFICIAL POSTAL STAMP OF THE POST-OFFICE DELIVERING THE ARTICLE IS MISSING ON THIS ALLEGED POSTAL SLIP WHICH IS A MUST IN THIS MODE OF DELIVERY. (C) THIRDLY, COL.27 INDICATING NAME OF THE PE RSON TAKING DELIVERY OF THE ITEM IS LYING BLANK. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 5 - (D) FOURTHLY, THE ALLEGED SIGNATURE APPEARING AT COL. 28 IS APPARENTLY ILLEGIBLE. ANYHOW, THE APPELLANT SAYS AND STATES THAT IT IS NE ITHER A SIGNATURE OF ANY OF THE PARTNERS OF THE FIRM NOR ANY OF THE AUTHORIZED PERS ON/AGENT WORKING UNDER ITS ESTABLISHMENT. THE APPELLANT DENIES OF HAVING AUTHO RIZED THE SO CALLED SIGNATORY BEARING ALLEGED SIGNATURE AS APPEARING AT COL. 28 O F THE SLIP. (E) FIFTHLY, THERE ARE OTHER DEFECTS/DEFICIENCIES IN THE ALLEGED SLIP SUCH AS DATE OF TIME MAILED (COL.4& 5), OFFICE OF ORIGIN (COL.20), ADDRESSEE'S POSTAL CODE(COL. 14) ARE LYING BLANK. (F) AND ABOVE ALL, THE SO-CALLED POSTAL ACKN OWLEDGMENT SLIP DOES NOT BEAR INWARD STAMPING WITH DATE OF THE OFFICE OF THE THEN ITO, WARD-7 (3), AHMEDABAD OR EVEN DATED INITIAL OF THE A.O. WHICH IS THE ESTABLISHED OFFICE PROCEDURE OF THE DEPARTMENT, WHEN ANY LETTER, DOCUMENT, POSTAL SLIP IS RECEIVED IN 'DAK', BY THE CONCERNED OFFICE. (G) IN NUT-SHELL, THE ALLEGED POSTAL SLIP IS CONCOCTED AND FORGED ONE TO CREATE A FABRICATED EVIDENCE TO SUPPORT THE CASE OF THE DEPA RTMENT. 3(III) IN REGARD TO THE A. O 'S COMMENTS THAT TH E JURISDICTION OVER THE CASE WAS TRANSFERRED TO HIS OFFICE ON 18/7/2015 AND SUBSEQUE NT NOTICES WERE ISSUED ON DIFFERENT DATES ARE IRRELEVANT, FOR THE SIMPLE REASON THAT TH E APPELLANT HAS CHALLENGED THE ISSUANCE AND SERVICE OF ALLEGED NOTICE U/S 143(2) OF THE ACT DATED 5/9/2014. WITHOUT PREJUDICE TO THE ABOVE, IT IS STATED THAT I N THE MIDDLE OF SECOND PAGE OF A.O'S REPORT, HE HAS ADMITTEDLY STATED THAT 'THE A.R. OF THE APPELLANT ATTENDED THE OFFICE FROM TIME TO TIME AND THE CASE WAS DISCUSSED AND SUBMISS ION WAS PLACED ON RECORD'. BESIDES THE A.O. HAS PASSED THE IMPUGNED ASSESSMENT ORDER U /S 143(3) OF THE ACT (AND NOT EX- PARTE), WHICH IN ITSELF SHOWS THAT THE A.O'S REMARK ON NON-COMPLIANCE OF THE APPELLANT IS VAGUE. THE CONDUCT OF THE APPELLANT IN PARTICIPATIN G IN ASSESSMENT-PROCEEDINGS, WOULD NOT BE SUFFICIENT TO CONFER THE JUSTIFICATION ON TH E A. O. WITHOUT VALID SERVICE OF NOTICE. 3(IV) LASTLY, THE A.O. HAS OFFERED HIS COMMENTS THAT DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT NEVER FILED ANY CROSS-OBJECTION REGAR DING NON-ISSUANCE OF NOTICE U/S 143(2) WITHIN TIME. THIS IS AN UNFAIR AND UNCALLED COMMENT S AT THIS STAGE. WITHOUT PREJUDICE TO THIS, IT IS STATED THAT THE APPELLANT ITSELF IS NOT VERY CONVERSANT WITH THE LAW AND UNFORTUNATELY COULD NOT BE PROPERLY REP RESENTED BEFORE THE A.O. AND THE APPELLANT SHOULD NOT SUFFER ON ACCOUNT OF POOR REPR ESENTATION OF THE THEN A.R.. NEVERTHELESS, THE PRESENT A.R. HAS RAISED THIS ISSU E AT THE VERY FIRST AVAILABLE OPPORTUNITY IN THE FORM OF SOF, BEFORE THE HON'BLE CIT(A). IT IS WELL SETTLED PRINCIPLE OF LAW THAT LEGAL GROUND CAN BE RAISED AT ANY STAGE BY THE APPE LLANT. THE APPELLANT, THEREFORE REQUEST THAT THE LEGAL GROUND RAISED BY THE APPELLANT, CHAL LENGING THE LEGALITY AND VALIDITY OF THE NOTICE U/S 143(2) MAY KINDLY BE ADJUDICATED AND DEC IDED ACCORDINGLY. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 6 - 3.(V) IN THE CONCLUDING PART OF THE REPORT, THE A.O. HAS REJECTED THE CONTENTION OF THE APPELLANT IN REGARD TO ISSUANCE OF ALLEGED NOTICE U /S 143(2) OF THE ACT. THE APPELLANT SAYS AND STATES THAT THE COMMENTS OF THE A.O. ARE WHOLLY INCORRECT AND UNACCEPTABLE, IN VIEW OF WHAT IS SUBMITTED AS AFORESAID. 4. REVERTING BACK TO THE APPELLANT'S CHALLEN GE THAT THE IMPUGNED ORDER PASSED BY THE A.O. IS BAD IN LAW, ILLEGAL AND WITHOUT VALID JURIS DICTION, IN ABSENCE OF VALID SERVICE OF NOTICE U/S 143(2) OF THE ACT, WHICH IS A FUNDAMENTA L REQUIREMENT FOR ASSUMING JURISDICTION TO PROCEED FOR MAKING ASSESSMENT, THE APPELLANT WOULD LIKE TO SUBMIT AS FOLLOWS: (1) THAT TIME AND AGAIN, VARIOUS COURTS HAVE HELD THAT ISSUANCE AND SERVICE OF NOTICE U/S 143(2) OF THE ACT GOES TO THE ROOT OF THE ASSES SMENT PROCEEDINGS. THE NOTICE HAS TO BE PROPERLY ADDRESSED TO THE PARTY, HAS TO BE SERVED O N THE ADDRESSEE OR HIS AGENT IF ANY, WHO IS DULY AUTHORIZED TO RECEIVE SUCH NOTICE. IN O THER WORDS, THERE SHOULD BE EVIDENCE OF FT) HAVING SERVED THE NOTICE UPON THE APPELLANT AND (II) SERVED UPON THE APPELLANT IN TIME AND ALSO (III) SERVED ON THE ASSESSEE IN PROPER MAN NER. THE LAW, THAT THERE COULD NO JURISDICTION FOR REGULAR ASSESSMENT, EXCEPT WHERE I T IS INITIATED BY SERVICE OF VALID NOTICE FOR SCRUTINY OF RETURN U/S 143(2) OF THE ACT, IS SE TTLED AT THE LEVEL OF HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON [2010] 321 ITR 362 (SC). IT HAS BEEN THIS LAW, WHICH HAS BEEN FOLLOWED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SUKHINI P. MODI [2014] 367ITR 682 (GUJ.). (2) FROM THE ABOVE, IT MAY KINDLY BE APPRECIA TED THAT WHEN THE PROCEDURE PRESCRIBED OF ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AND SER VICE THEREOF WITHIN THE LIMITATION LAID DOWN UNDER THE STATUE HAS NOT BEEN FOLLOWED AT ALL IN THE APPELLANT'S CASE. IN ABSENCE OF FULFILLMENT OF MANDATORY REQUIREMENT OF ISSUANCE OF NOTICE U/S 143(2) AND VALID SERVICE THEREOF IN THE CASE ON HAND, INVALIDATES THE WHOLE PROCEEDINGS AND THE IMPUGNED ASSESSMENT ORDER NEEDS TO BE QUASHED FOR THE REASON THAT SUCH DEFECT / DEFICIENCIES HAS BEEN 'JURISDICTIONAL' AND COULD NOT BE CURED BY REC OURSE OF SECTION 292B OF THE ACT. (3) NEEDLESS TO STATE THAT, AS PER A.O'S REMA ND REPORT THE FIRST NOTICE U/S 143(2) / 142(1) OF THE ACT WAS ISSUED BY THE A.O. ON 4/9/201 5 FIXING HEARING ON 30/9/2015. THIS IS A TIME BARRED NOTICE, SINCE THE LIMITATION OF SERVI CE OF NOTICE AS PER PROVISO TO SUB- SECTION(2) OF SECTION 143 IS TO BE WITHIN THE PERIO D OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. IT IS UNDISPUTED FACTS ON RECORD THAT THE APPELLANT FIRM SUBMITTED ITS E-RETURN ON 26/9/2013, I.E. WITHIN F.Y.2013-14. THEREFORE, THE LIMITATION TO ISSUE AND SERVICE OF NOTICE WAS A VAILABLE UPTO 30/9/2014 ONLY. WHEREAS, AS ADMITTEDLY STATED THE FIRST AND FOREMOST NOTICE HAS BEEN ISSUED ON 4/9/2015, I.E. BEYOND 30/9/2014, WHICH IN ITSELF IS BARRED BY LIMI TATION. (4) IN VIEW OF THE ABOVE, APPELLANT SAYS AND STATES THAT THE A.O. HAS FAILED TO DISCHARGE HIS ONUS THAT A VALID SERVICE OF NOTICE U /S 143(2) OF THE ACT WAS EFFECTED WITHIN THE LIMITATION AND THAT WAS SERVED ON THE APPELLANT . THE IMPUGNED ASSESSMENT ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 7 - PROCEEDINGS, WITHOUT EFFECTING PROPER SERVICE OF NO TICE ON THE APPELLANT U/S 143(2) OF THE ACT IS INVALID AND LIABLE TO BE QUASHED. (5) TO SUM UP, IN VIEW OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, AFORESAID SUBMISSION AND AVAILABLE CASE LAWS BEING RELIED UPO N, IT MAY KINDLY BE HELD THAT THERE WAS NO JUSTIFICATION FOR PROCEEDING TO MAKE REGULAR ASSESSMENT IN ABSENCE OF SERVICE OF VALID NOTICE U/S 143(2) OF THE ACT, AND THE IMPUGNE D ORDER IS LIABLE TO BE QUASHED. 4.5. HOWEVER, THE LEARNED CIT (A) OBSERVED THAT THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS UNDER SE CTION 143(3) OF THE ACT AS EVIDENT FROM THE REMAND REPORT OF THE AO. AC CORDINGLY HE WAS OF THE VIEW THAT THE ASSESSEE IS PRECLUDED FROM TAKING ANY OBJECTION REGARDING THE VALIDITY OF THE SERVICE OF NOTICE IN PURSUANCE TO THE EXPRESS PROVISIONS OF SECTION 292BB OF THE ACT. ACCORDINGLY , THE LEARNED CIT (A) REJECTED THE GROUND OF APPEAL OF THE ASSESS EE. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) , THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 108 AND REITERATED THE SUBMISSIONS AS MADE BEFOR E THE AUTHORITIES BELOW. 6. ON THE OTHER HAND, THE LEARNED DR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 8 - 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE PROVISIONS O F SECTION 143(2) OF THE ACT REQUIRES THE AO TO SERVE A NOTICE IF HE CONSIDE RS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDER STATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDERPAI D THE TAX IN ANY MANNER. AS SUCH, THE SERVICE OF NOTICE UNDER SECTIO N 143(2) OF THE ACT IS MANDATORY WITHIN THE PRESCRIBED TIME UPON THE ASSES SEE BEFORE ACQUIRING THE JURISDICTION FOR THE ASSESSMENT UNDER SECTION 1 43(3) OF THE ACT. IN HOLDING SO WE FIND SUPPORT AND GUIDANCE FROM THE JU DGMENT OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MO ON REPORTED IN 321 ITR 362 WHEREIN IT WAS HELD AS UNDER: OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF A NOTICE UNDER SECTIO N 143(2) CANNOT BE DISPENSED WITH. 7.1. IT IS ALSO PERTINENT TO NOTE THAT THE REVE NUE CAN TAKE THE SHELTER OF THE PROVISIONS OF SECTION 292 BB OF THE ACT IN A SI TUATION WHERE THE STATUTORY NOTICE HAS BEEN ISSUED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME BUT THE SAME WAS NOT SERVED IN THE PROPER MANN ER AND THE ASSESSEE HAS NOT RAISED ANY OBJECTION ON THE SERVICE OF SUCH NOTICE DURING THE ASSESSMENT PROCEEDINGS. IN THIS REGARD WE IMPORTANT TO REFER THE PROVISIONS OF SECTION 143(2) AND 292 BB OF THE ACT WHICH ARE EXTRACTED AS UNDER. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 9 - PROVISO TO SECTION 143(2) OF THE ACT IS EXTRACTED F OR READY REFERENCE WHICH READS THUS: 'PROVIDED THAT NO NOTICE UNDER THIS SUB-SECTION SHA LL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED.' SECTION 292 BB IS EXTRACTED HEREIN FOR READY REFERE NCE: '292BB WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEE DING OR CO-OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSME NT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH I S REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCOR DANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER THIS ACT THAT THE NOTIC E 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 SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.' 7.2 ACCORDINGLY, WE HOLD THAT OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE PROPER NOTICE UNDER SECTION 143( 2) OF THE ACT CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CU RABLE, WHICH IS REFERRED IN HOTEL BLUE MOON'S CASE ( SUPRA ). THE FLAW FOUND IN THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT GOES TO THE ROOT OF THE MATTER AND THE SAME CANNOT BE CURED OR DISPENSED WITH, TO CONSIDER THE CASE ON MERITS. THE ASSESSMENT ORDER IS PASSED BASED ON THE INVALID NOTICE, WHICH DOES ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 10 - NOT SURVIVE. NOTICE IS THE FOUNDATION. ASSESSMENT O RDER BUILT UPON SUCH DEFECTIVE NOTICE WOULD CERTAINLY FALL TO THE GROUND . 7.3. HOWEVER, THE CASE BEFORE US IS DIFFERENT SO FAR IT RELATES TO THE VALIDITY OF THE ISSUANCE OF NOTICE UNDER SECTION 14 3(2) OF THE ACT. THE CONTROVERSY IN THE PRESENT CASE WHETHER THE STATUTO RY NOTICE WAS ISSUED WITHIN THE TIME AS PRESCRIBED UNDER THE PROVISIONS OF SECTION 143(2) OF THE ACT. 7.4. ADMITTEDLY, THE ONUS LIES ON THE REVENUE TO SUBSTANTIATE BASED ON DOCUMENTARY EVIDENCE THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED WITHIN THE PRESCRIBED TIME. THE PROVISIONS F OR THE SERVICE OF THE NOTICE OF THE ONE BY THE PROVISIONS OF SECTION 282 OF THE ACT WHICH READS AS UNDER: 57 [ SERVICE OF NOTICE GENERALLY. 58 282 . 59 (1) THE SERVICE OF A NOTICE OR SUMMON OR REQUISITI ON OR ORDER OR ANY OTHER COMMUNICATION UNDER THIS ACT (HEREAFTER IN THIS SEC TION REFERRED TO AS 'COMMUNICATION') MAY BE MADE BY DELIVERING OR TRANS MITTING A COPY THEREOF, TO THE PERSON THEREIN NAMED, (A) BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPRO VED BY THE BOARD; OR (B) IN SUCH MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908) FOR THE PURPOSES OF SERVICE OF SUMMONS; OR (C) IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDED IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000); OR (D) BY ANY OTHER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RUL ES MADE BY THE BOARD IN THIS BEHALF. (2) THE BOARD MAY MAKE RULES 60 PROVIDING FOR THE ADDRESSES (INCLUDING THE ADDRESS FOR ELECTRONIC MAIL OR ELECTRONIC MAIL MESSAGE) TO WHICH THE COMMUNICATION REFERRED TO IN SUB-SECTION (1) MAY BE DELIVERED OR TRANSMITT ED TO THE PERSON THEREIN NAMED. ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 11 - EXPLANATION.FOR THE PURPOSES OF THIS SECTION, THE EXPRESSIONS 'ELECTRONIC MAIL' AND 'ELECTRONIC MAIL MESSAGE' SHALL HAVE THE MEANIN GS AS ASSIGNED TO THEM IN EXPLANATION TO SECTION 66A OF THE INFORMATION TE CHNOLOGY ACT, 2000 (21 OF 2000) 61 .] 7.5. IN THE CASE ON HAND, THE NOTICE, AS ALLEGED BY THE REVENUE ON THE BASIS OF ACKNOWLEDGEMENT OF SPEED POST, HAS BEEN IS SUED THROUGH THE SPEED POST. THE COPY OF THE ACKNOWLEDGEMENT IS PLAC ED ON PAGE 103 OF THE PAPER BOOK. ON PERUSAL OF THE SAME, WE FIND CER TAIN INFIRMITIES AS SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT (A ) WHICH ARE DISCUSSED SOMEWHERE IN THE PRECEDING PARAGRAPH. FIRST OF ALL THE ACKNOWLEDGEMENT DOES NOT BEAR ANY DATE SUGGESTING THE ISSUANCE OF T HE NOTICE. SECONDLY, IT DOES NOT CONTAIN ANY TRACKING NUMBER WHICH IS NORMA LLY ISSUED BY THE POSTAL AUTHORITIES. THE LEARNED DR HAS NOT BROUGHT ANY CORROBORATIVE EVIDENCES IN SUPPORT OF THE CONTENTION THAT THE NOT ICE WAS ISSUED WITHIN THE PRESCRIBED TIME. IN OUR CONSIDERED VIEW, THE RE VENUE HAS FAILED TO DISCHARGED THE ONUS BY PRODUCING SUFFICIENT DOCUMEN TARY EVIDENCE FOR ESTABLISHING THE FACT THAT THE STATUTORY NOTICE UND ER SECTION 143(2) OF THE ACT WAS ISSUED WITHIN THE PRESCRIBED TIME. THUS IN ABSENCE OF CONTRARY EVIDENCES, WE ARE NOT CONVINCED WITH THE FINDING OF THE AUTHORITIES BELOW. INDEED, IT (ACKNOWLEDGMENT ISSUED BY THE POS TAL DEPARTMENT) IS A VAGUE AND INCHOATE DOCUMENT. HENCE, NO RELIANCE CAN BE PLACED ON THE SAME. 7.6. ACCORDINGLY, WE HOLD THAT THE ASSESSMENT F RAMED UNDER SECTION 143(3) OF THE ACT WITHOUT THE ISSUANCE/SERVING OF N OTICE UNDER SECTION ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 12 - 143(2) OF THE ACT WITHIN THE TIME IS NOT SUSTAINABL E. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 7.7. AS WE HAVE DECIDED THE ISSUE IN FAVOUR OF A SSESSEE ON TECHNICAL GROUND, WE REFRAIN OURSELVES FROM ADJUDICATING THE ISSUE RAISED BY THE ASSESSEE ON MERIT. THUS THE ISSUE ON MERIT BECOMES INFRUCTUOUS. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 06/12/2019 SD/- SD/- (MS. MADHUMITA ROY) (W ASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 06/12/2019 &.., .(.. / T.C. NAIR, SR. PS !'#' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A) AHMEDABAD-5. 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD ITA NO.280/AHD/2018 M/S.SIMANDHAR METRO ESTATE VS.DCIT ASST .YEAR - 2013-14 - 13 - 1. DATE OF DICTATION 2.12.19( WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DRA GON ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2.12.19/5.12.19 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.6.12.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6.12.19 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER