Krishi Utpanna Bazar Samittee, Jalgaon V. Income-tax Officer,

ITA 338/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2586 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 24-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTUAMA
• Keywords: Procedural lapse; Revenue expenditure
• Section: 143(3); 142(1); 147; 11; 139

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , !, # $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NOS.338 & 339/PN/2014 ASSESSMENT YEARS : 2007-08 & 2008-09 KRISHI UTPANNA BAZAR SAMITTEE, (APMC), DHARANGAON, JALGAON 425 105. PAN : AAALT0847J . APPELLANT VS. THE INCOME TAX OFFICER, WARD 2(3), JALGAON. . RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPONDENT BY : SMT. ANN KAPTUAMA / DATE OF HEARING : 09.02.2016 / DATE OF PRONOUNCEMENT: 29.02.2016 % / ORDER PER PRADIP KUMAR KEDIA, AM : BOTH THE CAPTIONED APPEALS PREFERRED BY THE ASSESSE E ARE AGAINST THE ORDERS OF CIT(A)-2, NASHIK FOR ASSESSMENT YEARS 200 7-08 AND 2008-09 BOTH DATED 02.12.2013 PASSED UNDER SECTION 143(3) R.W.S. 148 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. BOTH THE CAPTIONED APPEALS PREFERRED BY THE ASSE SSEE ARE ON IDENTICAL TERMS. ACCORDINGLY, WE SHALL TAKE-UP THE APPEAL FO R ASSESSMENT YEAR 2007-08 AS THE LEAD CASE. ITA NO.338/PN/2014 (A.Y. 2007-08): 3. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL :- 2 ITA NOS.338 & 339/PN/2014 1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE RE ASSESSMENT U/S. 147 WAS VALID IN LAW WITHOUT APPRECIATING THAT NO NOTICE U/S. 143 (2) WAS ISSUED TO THE ASSESSEE AND ACCORDINGLY, THE REASSESSMENT ORDER SHOULD HAVE BEE N HELD TO BE NULL AND VOID. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT SINCE T HE ASSESSEE HAD ATTENDED DURING THE ASST. PROCEEDINGS AND HAD NOT RAISED THE OBJECTION OF NON ISSUE OF NOTICE U/S. 143(2), THE ASSESSEE WAS PRECLUDED FROM THE SA ID OBJECTION IN THE APPELLATE PROCEEDINGS IN VIEW OF THE PROVISIONS OF SECTION 29 2BB. 3] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE PROVISIONS OF SECTION 292BB WERE NOT APPLICABLE TO THE FACTS OF THE PRESENT CAS E AND THEREFORE, THE ASSESSEE HAD A RIGHT TO AGITATE THE VALIDITY OF THE REASSESSMENT O RDER EVEN THOUGH THE ASSESSEE HAD NOT RAISED THE OBJECTION DURING THE REASSESSMENT PR OCEEDINGS. 4] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T SINCE NO NOTICE U/S. 143(2) WAS ISSUED BY THE LEARNED A.O., THE REASSESS MENT ORDER WAS NOT VALID AND ACCORDINGLY, THE SAME SHOULD HAVE BEEN DECLARED NUL L AND VOID. 5] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LEAR NED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM EXEMPTI ON U/S. 10(20) OF THE ACT WITHOUT APPRECIATING THAT THE ASSESSEE WAS ENTITLED TO THE SAID EXEMPTION. 6] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LEAR NED CIT(A) ERRED IN NOT ALLOWING THE EXPENDITURE INCURRED ON REPAIRS OF ROA D, COMPOUND WALL, CANTEEN, TOILET, SUNDRY SHOPS, PLATFORM, ETC. AS A REVENUE E XPENDITURE WHILE COMPUTING THE INCOME OF THE ASSESSEE. THE ASSESSEE REQUESTS THAT THE TOTAL EXPENDITURE OF RS.8673372/- INCURRED ON THE ABOVE ITEMS SHOULD BE TREATED AS A REVENUE EXPENDITURE WHILE COMPUTING THE INCOME OF THE ASSES SEE. 7] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 4. BY WAY OF GROUND NOS.1 TO 4, THE ASSESSEE HAS CH ALLENGED THE VALIDITY OF RE-ASSESSMENT ORDER ITSELF FRAMED UNDER SECTION 143 (3) R.W.S. 148 OF THE ACT. GROUND NOS.5 AND 6 CONCERNS MERITS OF THE ISSUES IN VOLVED. 5. SINCE THE ASSESSEE HAS QUESTIONED THE VALIDITY O F THE RE-ASSESSMENT ORDER ITSELF WHICH IS A PRELIMINARILY ISSUE, IT WOULD BE EXPEDIENT TO ADJUDICATE GROUND NOS.1 TO 4 FIRST. 6. THE RELEVANT FACTS CONCERNING GROUND NOS.1 TO 4 ARE THAT THE ASSESSEE NAMELY KRISHI UTPANNA BAZAR SAMITTEE (AGRICULTURE P RODUCE MARKET COMMITTEE APMC) FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007- 08 BELATEDLY ON 29.05.2009 DECLARING TOTAL INCOME A T RS.NIL AFTER CLAIMING EXEMPTION UNDER SECTION 11 OF THE ACT. AS THE ASSE SSEE DID NOT FILE ITS RETURN OF INCOME WITHIN THE TIME LIMIT PRESCRIBED UNDER SE CTION 139(1) OR SECTION 3 ITA NOS.338 & 339/PN/2014 139(4) OF THE ACT, A NOTICE UNDER SECTION 148 OF TH E ACT WAS ISSUED ON 22.03.2011. IN RESPONSE TO THE AFORESAID NOTICE UN DER SECTION 148 DATED 22.03.2011, THE ASSESSEE FILED A LETTER DATED 01.04 .2011 ADDRESSED TO THE ASSESSING OFFICER AND POINTED OUT THAT RETURN OF IN COME FOR THE IMPUGNED ASSESSMENT YEAR IS ALREADY FILED ON 29.05.2009 WHIC H MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE AFORESAID NOTICE UNDER SEC TION 148 OF THE ACT. THEREAFTER, NOTICE UNDER SECTION 142(1) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER ON 18.08.2011 AND RE-ASSESSMENT ORDER WAS P ASSED UNDER SECTION 143(3) R.W.S. 148 OF THE ACT ON 16.12.2011 WHEREBY CHARGEABLE INCOME OF THE ASSESSEE WAS ASSESSED AT RS.27,99,940/-. 7. AGGRIEVED BY THE RE-ASSESSMENT ORDER, THE ASSESS EE PREFERRED AN APPEAL BEFORE THE CIT(A). AS PER PARA 5 OF THE ORDER OF T HE CIT(A), THE ASSESSEE RAISED ITS CONTENTION BEFORE THE CIT(A) AT THE FIRS T INSTANCE THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED. THE NOTICE W AS ISSUED UNDER SECTION 142(1) OF THE ACT ONLY TOGETHER WITH QUESTIONNAIRE. THE ASSESSEE THEREFORE AGITATED THE VALIDITY OF THE RE-ASSESSMENT ORDER AN D CONTENDED THAT IN THE ABSENCE OF STATUTORY NOTICE MANDATED UNDER SECTION 143(2), THE RE-ASSESSMENT ORDER IS VOID AB INITIO AND DESERVES TO BE ANNULLED. THE ASSESSEE SUBMITT ED THAT THE ASSESSING OFFICER OUGHT TO HAVE ISSUED NOTICE U NDER SECTION 143(2) WITHIN PRESCRIBED TIME LIMIT TO ENABLE HIM PROCEED WITH TH E RE-ASSESSMENT PROCEEDINGS. HE POINTED OUT THAT AS CAN BE SEEN FR OM PARA 2 OF THE ASSESSMENT ORDER, IT IS MANIFEST THAT ISSUANCE OF NOTICE UNDER SECTION 142(1) OF THE ACT ONLY IS IN REFERENCE. THERE IS NO ASSERTION TO THE EFFE CT THAT NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED. HE FURTHER ADDED THAT THE DEFECT IN NON-ISSUANCE OF NOTICE UNDER SECTION 143(2) IS NOT CURABLE UNDER SE CTION 292BB OF THE ACT. THE CIT(A) OBTAINED REMAND REPORT FROM THE ASSESSIN G OFFICER DATED 10.09.2013 IN THE MATTER WHICH IS REPRODUCED IN PAR A 6 OF THE ORDER OF THE CIT(A). AS PER THE REMAND REPORT, THE ASSESSING OF FICER ADMITTED THAT NOTICE UNDER SECTION 143(2) WAS NOT FOUND ON RECORD BOTH F OR THE ASSESSMENT YEAR 2007-08 AS WELL AS FOR ASSESSMENT YEAR 2008-09 IN A PPEAL. HE HOWEVER ADDED THAT THERE IS A MENTION OF NOTICE UNDER SECTION 143 (2) IN A LETTER/QUESTIONNAIRE 4 ITA NOS.338 & 339/PN/2014 DATED 18.08.2011. THE ASSESSING OFFICER MADE OUT A CASE IN THE REMAND REPORT THAT THE ASSESSEE HAS FILED REPLY TO THE AFORESAID QUESTIONNAIRE WHEREIN HE HAS NOT DENIED THE RECEIPT OF AFORESAID NOTICE UNDER SE CTION 143(2) MENTIONED IN THE LETTER DATED 18.08.2011. ALSO, THE ASSESSEE CO OPERATED WITH THE DEPARTMENT AND ATTENDED FROM TIME TO TIME AND FURNISHED THE IN FORMATION CALLED FOR WITHOUT ANY OBJECTION IN THIS REGARD. THE ASSESSIN G OFFICER ALSO ASSERTED THAT THE OBJECTION BY THE ASSESSEE OF NON-ISSUANCE OF NO TICE IS NOT SUSTAINABLE IN VIEW OF EXPRESS PROVISION OF SECTION 292BB OF THE A CT. THE CIT(A) AGREED WITH THE CASE MADE OUT BY THE ASSESSING OFFICER AND REJECTED THE OBJECTION OF THE ASSESSEE IN THIS REGARD. THE CIT(A) ALSO CONFI RMED THE ACTION OF THE ASSESSING OFFICER ON MERITS AND DISMISSED THE APPEA L OF THE ASSESSEE. 8. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US. 9. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE, AT THE OUTSET, REITERATED THAT NOTICE UNDER SECTION 143(2) HAS NOT BEEN SERVED UPON THE ASSESSEE AND THEREFORE IMPUGNED RE-ASSESSMENT ORDER S FOR ASSESSMENT YEARS 2007-08 AND 2008-09 FRAMED UNDER SECTION 143(3) R.W .S. 147 OF THE ACT IS VOID AB INITIO AND IS WITHOUT JURISDICTION. HE SUBMITTED THAT IT IS APPARENT FROM THE ASSESSMENT ORDERS AS WELL AS FROM THE ORDERS OF THE CIT(A) FOR THESE YEARS THAT NOTICE ISSUED IS ONLY WITH REFERENCE TO SECTION 142 (1) OF THE ACT. NO NOTICE UNDER SECTION 143(2) OF THE ACT HAS BEEN ISSUED AT ANY POINT OF TIME. HE ALSO POINTED OUT THAT IN RESPONSE TO NOTICE UNDER SECTIO N 148, THE RETURN FILED EARLIER ON 29.05.2009 WAS DEEMED TO HAVE BEEN FILED IN VIEW OF EXPRESS LETTER FROM THE ASSESSEE DATED 01.04.2011 PLACED IN THE COURSE OF HEARING BEFORE US. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE EMPH ASIZED WITH VEHEMENCE THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) IS A SINE QUA NON FOR PROCEEDINGS UNDER SECTION 147 TO GET UNDERWAY. IF THE REQUIREM ENTS OF SECTION 143(2) ARE NOT MET WITH, IT AFFECTS THE VALIDITY OF THE ASSESS MENT ORDER ITSELF. HE CONTENDED THAT SECTION 143(2) IS NOT MERELY PROCEDU RAL BUT IS A MANDATORY PROVISION AND CANNOT BE BYPASSED. FOR THIS PROPOSI TION, HE CITED VARIOUS 5 ITA NOS.338 & 339/PN/2014 DECISIONS VIZ: ACIT VS. HOTEL BLUE MOON, (2010) 321 ITR 362 (SC); ACIT VS. GENO PHARMACEUTICALS LTD., (2013) 32 TAXMANN.COM 16 2 (BOM.); SAPTHAGIRI FINANCE & INVESTMENTS VS. ITO, (2013) 90 DTR 289 (M AD.) AND THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CAS E OF MACHALE GOVINDRAO NAMDEORAO VS. ITO IN ITA NO.1982/PN/2012, ORDER DAT ED 08.01.2014. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURT HER RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PR.C IT VS. SHRI JAI SHIV SHANKAR TRADERS PVT. LTD. IN ITA NO.519/2015, ORDER DATED 14.10.2015 FOR THE PROPOSITION THAT ISSUANCE OF NOTICE UNDER SECTION 1 43(2) IS MANDATORY AND SECTION 292BB DOES NOT PROVIDE IMMUNITY FROM THE AP PLICABILITY OF SECTION 143(2) OF THE ACT. 10. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REV ENUE, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE CIT(A) AND SUBMI TTED THAT MERE NON- ISSUANCE OF NOTICE UNDER SECTION 143(2) BY ITSELF W ILL NOT INVALIDATE THE RE- ASSESSMENT ORDER. HE SUBMITTED THAT THE ASSESSEE W AS DULY INFORMED OF THE RE- ASSESSMENT PROCEEDINGS AND NOTICE UNDER SECTION 142 (1) WAS DULY ISSUED IN ANY CASE. HE NEXT SUBMITTED THAT THE ASSESSEE HAS FULL Y COOPERATED IN THE RE- ASSESSMENT PROCEEDINGS AND FULL OPPORTUNITY HAS BEE N PROVIDED TO THE ASSESSEE WHILE FRAMING THE RE-ASSESSMENT. HENCE, OBLIGATION TO ISSUE NOTICE UNDER SECTION 143(2) IS ONLY TECHNICAL AND THEREFORE DEFE CT, IF ANY, STANDS CURED BY SECTION 292BB OF THE ACT. THE LD. DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE ADVERTED OUR ATTENTION TO THE RECENT DECISI ON OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF CHAWARA EDUCATIONAL TRUST V S. ITO IN ITA NO.849/PN/2014, ORDER DATED 20.01.2016 AND SUBMITTE D THAT IN THE AFORESAID DECISION, THE TRIBUNAL HAS COME TO THE CONCLUSION T HAT NON-ISSUANCE OF NOTICE UNDER SECTION 143(2) IS NOT FATAL AND WILL NOT IMPI NGE UPON THE LEGALITY OF THE IMPUGNED RE-ASSESSMENT. 11. WE HAVE GIVEN OUR CAREFUL CONSIDERATIONS TO THE RIVAL SUBMISSIONS AND PERUSED VARIOUS CASE LAWS CITED. TO BEGIN WITH, TH E SHORT QUESTION BEFORE US IS WHETHER NON-ISSUANCE OF NOTICE UNDER SECTION 143(2) WILL INVALIDATE THE RE- 6 ITA NOS.338 & 339/PN/2014 ASSESSMENT ORDER FRAMED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT IN THE FACTS OF THE CASE SET OUT OR NOT. WE OBSERVE THAT THE RE TURN OF INCOME FILED DATED 29.05.2009 IS NOT A RETURN UNDER SECTION 139(1) OR UNDER SECTION 139(4) OF THE ACT. HOWEVER, WE SIMULTANEOUSLY OBSERVE THAT THE A SSESSEE HAS FILED A LETTER DATED 01.04.2011 WHEREBY IT WAS SUBMITTED BEFORE TH E ASSESSING OFFICER THAT RETURN FILED EARLIER ON 29.05.2009 MAY BE TREATED A S RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 DATED 22.03.2011. BY VIRT UE OF THIS AFORESAID COMMUNICATION, THE EARLIER RETURN STOOD VALIDATED A ND IS DEEMED TO BE RETURN FILED UNDER SECTION 139 OF THE ACT AS SPECIFIED IN SECTION 148(1) OF THE ACT. 12. ON A COMBINED READING OF SECTION 143(2) TOGETHE R WITH SECTION 148(1) OF THE ACT, WE OBSERVE THAT WHEN THE ASSESSING OFFICER SERVES NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSEE IS REQUIRED TO FILE RETURN IN RESPONSE THERETO. THE PROVISIONS OF SECTION 148 SEEKS TO TRE AT THE RETURN FILED IN RESPONSE TO NOTICE SERVED UNDER SECTION 148 AS RETURN FILED UNDER SECTION 139 OF THE ACT. THIS IS FOLLOWED BY NOTICE UNDER THE PROVISIONS OF SECTION 143(2) AND SECTION 142(1) TO ENABLE THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT PURSUANT THERETO. WE FIND THAT A VALID RETURN IS DEEMED TO HAVE BEEN FILED IN THE PRESENT CASE IN RESPONSE TO IMPUGNED NOTICE UNDER SECTION 1 48 OWING TO AN EXPRESS LETTER DATED 01.04.2011 ADDRESSED TO THE ASSESSING OFFICER AS NOTED ABOVE. IN OTHER WORDS, A VALID RETURN IS DEEMED TO HAVE BEEN FILED BY THE ASSESSEE IN THE PRESENT CASE UNDER SECTION 139 OF THE ACT IN COMPLI ANCE OF NOTICE UNDER SECTION 148 OF THE ACT. AS NOTED ABOVE, RETURN FILED IN RE SPONSE TO NOTICE UNDER SECTION 148 IS DEEMED TO RETURN FILED UNDER SECTION 139 AND ALL THE PROVISIONS OF THE ACT SHALL APPLY ACCORDINGLY. AS A COROLLARY, AS PER THE MANDATE OF SECTION 143(2) OF THE ACT, THE NOTICE FOR ASSESSMEN T HAS TO BE NECESSARILY ISSUED IN SO FAR AS THE RETURN DEEMED TO HAVE BEEN FILED U NDER SECTION 139 OF THE ACT. 13. A PLAIN READING OF SECTION 143(2) SUGGESTS THAT WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139 OR IN RESPONSE TO NOTIC E UNDER SECTION 142(1), THE PROVISIONS OF SECTION 143(2) WILL COME INTO PLAY. IN VIEW OF THE REGULARIZATION OF THE EARLIER RETURN FILED AS RETURN FILED IN RESP ONSE TO NOTICE UNDER SECTION 148 7 ITA NOS.338 & 339/PN/2014 WHICH IN TURN DEEMS SUCH RETURN AS RETURN FILED UND ER SECTION 139 OF THE ACT, THE REQUIREMENT OF ISSUANCE OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. WE FIND THAT THE AFORESAID CONTENTION IS SQU ARELY COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL B LUE MOON (SUPRA) AND OTHER JUDICIAL DECISION IN THE CASE OF GENO PHARMAC EUTICALS LTD. (SUPRA). THE REVENUE, WHILE ADMITTING THE FACT OF NON-ISSUANCE O F NOTICE UNDER SECTION 143(2) IN THE PRESENT CASE, HAS CONTENDED IN THE AL TERNATIVE THAT SECTION 292BB BAILS OUT THE DEPARTMENT FOR SUCH ALLEGED DEFICIENC Y IF ANY. THE REVENUE HAS SOUGHT TO PLACE RELIANCE ON PROVISIONS OF SECTION 2 92BB OF THE ACT WHEREBY, ACCORDING TO THE REVENUE, NON-ISSUANCE OF NOTICE UN DER SECTION 143(2) WILL NOT INVALIDATE THE RE-ASSESSMENT PROCEEDINGS AS THE ASS ESSEE HAS FULLY COOPERATED IN THE PROCEEDINGS AND HAS NOT RAISED ANY OBJECTION IN THIS REGARD IN THE COURSE OF THE RE-ASSESSMENT PROCEEDINGS. WE FIND THAT THI S ASPECT OF THE MATTER IS ALSO SQUARELY COVERED AGAINST THE REVENUE BY THE DECISIO N OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SHRI JAI SHIV SHANKAR TRA DERS PVT. LTD. (SUPRA). IN THE AFORESAID DECISION, THE HONBLE DELHI HIGH COUR T AFTER RELYING ON THE SEVERAL JUDICIAL PRECEDENTS HAS HELD THAT THE FAILU RE OF THE ASSESSING OFFICER IN THE COURSE OF RE-ASSESSMENT PROCEEDINGS TO ISSUE NO TICE UNDER SECTION 143(2) PRIOR TO FINALIZATION OF RE-ASSESSMENT ORDER CANNOT BE CONDONED BY RESORTING TO SECTION 292BB OF THE ACT. IN THE AFORESAID DECISIO N, IT HAS BEEN OBSERVED THAT ISSUE OF NOTICE UNDER SECTION 143(2) IS MANDATORY R EQUIREMENT AND IS NOT A MERE PROCEDURAL IRREGULARITY AND THEREFORE THE SAME IS NOT CURABLE DEFECT UNDER SECTION 292BB OF THE ACT. IN VIEW OF THE JUDICIAL PRECEDENT AVAILABLE ON THE ISSUE, WE FIND NO MERIT IN THE PLEA OF THE REVENUE. 14. IN THE LIGHT OF AFORESAID DISCUSSION, WE ARE IN CLINED TO AGREE WITH THE PLEA OF THE ASSESSEE THAT IN THE ABSENCE OF NOTICE UNDER SECTION 143(2) PURSUANT TO NOTICE UNDER SECTION 148, THE RE-ASSESSMENT ORDE R PASSED BY THE ASSESSING OFFICER IS RENDERED BAD IN LAW AND THEREFORE REQUIR ES TO BE QUASHED. AT THIS JUNCTURE, WE ALSO OBSERVE THAT THE DECISION RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE IN THE CASE OF CHAWA RA EDUCATIONAL TRUST (SUPRA) IS TOTALLY DISTINGUISHABLE ON FACTS. THE A FORESAID ITAT DECISION WAS 8 ITA NOS.338 & 339/PN/2014 RENDERED IN ITS PECULIAR FACTS. IN THAT CASE, THE RETURN WAS NOT FILED AT ALL AND NO VALID RETURN WAS EXISTING UNDER SECTION 139(1) OR U NDER SECTION 139(4) OR IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT AND THEREFORE IT WAS HELD THAT SECTION 143(2) DOES NOT GET TRIGGERED IN THE CIRCUM STANCES AT ALL. UNLIKE THE AFORESAID CASE, IT IS APPARENT THAT A VALID RETURN IS DEEMED TO HAVE COME INTO EXISTENCE UNDER SECTION 139 OF THE ACT IN THE PRESE NT CASE IN VIEW OF THE SPECIFIC REQUEST OF THE ASSESSEE TO CONSIDER THE RE TURN FILED EARLIER AS RETURN IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. T HEREFORE, THE AFORESAID DECISION OF THE PUNE BENCH OF THE TRIBUNAL (SUPRA) IS OF NO ASSISTANCE TO THE REVENUE. SINCE WE HAVE HELD THAT THE RE-ASSESSMENT ORDER IS BAD IN LAW AND IS THEREFORE A NULLITY, THE OTHER GROUNDS CONCERNING T HE MERITS EMANATING FROM THE AFORESAID RE-ASSESSMENT ORDER BECOMES INFRUCTUO US AND DOES NOT CALL FOR ANY ADJUDICATION. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.338/PN/2014 RELATING TO ASSESSMENT YEAR 2007-08 IS ALLOWED. ITA NO.339/PN/2014 (A.Y. 2008-09): 16. NOW, WE SHALL TAKE-UP THE APPEAL OF THE ASSESSE E IN ITA NO.339/PN/2014 RELATING TO ASSESSMENT YEAR 2008-09. 17. IN THIS APPEAL, THE FACTS AND ISSUES INVOLVED A RE IDENTICAL TO THAT OF ASSESSMENT YEAR 2007-08 WITH SOME MINOR VARIATIONS. IN THIS ASSESSMENT YEAR, THE RETURN WAS FILED ON 29.05.2009 I.E. WITHIN THE PRESCRIBED TIME LIMIT UNDER SECTION 139(4) OF THE ACT. FOR THIS ASSESSMENT YEA R ALSO, IT IS ADMITTED POSITION THAT NOTICE UNDER SECTION 143(2) HAS NOT BEEN ISSUE D TO THE ASSESSEE AT ALL. ACCORDINGLY, FOLLOWING THE PARITY OF REASONINGS AS NOTED FOR ASSESSMENT YEAR 2007-08, THE RE-ASSESSMENT ORDER FRAMED UNDER SECTI ON 143(3) R.W.S. 147 OF THE ACT DATED 16.12.2011 IS VOID AB INITIO AND BAD IN LAW. 9 ITA NOS.338 & 339/PN/2014 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.339/PN/2014 RELATING TO ASSESSMENT YEAR 2008-09 IS ALSO ALLOWED. 19. RESULTANTLY, BOTH THE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED ON THIS 29 TH DAY OF FEBRUARY, 2016. SD/- SD/- ( SUSHMA CHOWLA ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER # / ACCOUNTANT MEMBER PUNE ; DATED : 29 TH FEBRUARY, 2016. % & '() *)' / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-2, NASHIK; 4) THE CIT-2, NASHIK; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. %+ / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE