M/s Rajit Syntex Pvt. Ltd., Noida V. ITO, New Delhi

ITA 3403/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8110 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 27-04-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 29-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIS CHANDRA MOHANTY
• Keywords: Unexplained cash credit; Procedural lapse; Block assessment; Reason to believe; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3403/DEL/2013 AY: 20 04-05 RAJIT SYNTEX PVT. LTD., VS INCOME TAX O FFICER, 430, SECTOR 28, WARD 15(2), NEW DELHI. NOIDA, UP-201 301 (PAN: AACCR0963N) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN, CA RESPONDENT BY : SHRI ASHIS CHANDRA MOHANTY, SR.DR DATE OF HEARING: 27.04.2016 DATE OF PRONOUNCEMENT: 29.04.2016 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE IMPUGNED ORDER DATED 11.03.2013 PASSED BY THE LD. CIT (A)-XVIII, NEW DELHI, WHEREIN FOR ASSESSMENT YE AR 2004-05, THE FIRST APPELLATE AUTHORITY HAS PRIMARILY REJECTE D THE ASSESSEES CONTENTION THAT THE OMISSION ON THE PART OF THE ASS ESSING OFFICER TO ISSUE NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1 961 IS NOT A MERE PROCEDURAL IRREGULARITY AND THE SAME IS NOT CU RABLE. 2. THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.04 .2004. NOTICE U/S 148 OF THE ACT WAS ISSUED ON 28.03.2011 AND I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 2 THEREAFTER, THE INCOME WAS ASSESSED AT RS.11,34,435 /-. IT IS THE ASSESSEES CONTENTION THAT NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE SUBSEQUENT TO THE ISSUE OF N OTICE U/S 148. IT HAS BEEN THE ASSESSEES STAND THAT NON-ISSUANCE OF NOTICE TO AN ASSESSEE, AS PRESCRIBED IN THE ACT, IS NOT ONLY A P ROCEDURAL IRREGULARITY AND THAT IN ABSENCE OF THE ISSUANCE OF STATUTORY NOTICE U/S 143(2) OF THE ACT, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS BAD IN LAW AND VOID AB INITIO. THE ASSESSEE RAISED THIS ISSUE BEFORE THE LD. CIT (A) ALSO. HOW EVER, THE LD. CIT (A), WHILE ADJUDICATING THE ISSUE, RELYING UPON THE JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF MADHYA BHARAT CORPORATION LTD. 337 ITR 389 (DEL), HELD THAT THE N ON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT DID NOT MAKE THE ASSES SMENT INVALID. ON MERITS ALSO, THE LD. CIT (A) DISMISSED THE GROUN DS OF APPEAL OF THE ASSESSEE. NOW, THE ASSESSEE IS IN APPEAL BEFOR E US AND HAS RAISED AS MANY AS 12 GROUNDS OF APPEAL BUT GROUND N O. 5 BEING GERMANE TO THE ENTIRE ISSUE AT HAND IS BEING TAKEN UP FIRST. THE GROUND READS AS UNDER:- 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE REOPENING DESPITE THE FACT THAT THE SAME IS BAD AND LIABLE TO BE QUASHED HAVING BEEN MADE I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 3 WITHOUT THE ISSUE OF STATUTORY NOTICE U/S 143(2) OF THE ACT. 3. AT THE OUTSET, LD. AR SUBMITTED THAT THE JUDGMENT O F THE HON'BLE DELHI HIGH COURT IN THE CASE OF MADHYA BHAR AT CORPORATION (SUPRA), WHICH HAD BEEN RELIED UPON BY THE LD. CIT(A), HAS SINCE BEEN REVERSED BY THE HON'BLE HIGH COURT IN A REVIEW PETITION VIDE ORDER DATED 17.08.2011. THE L D. AR SUBMITTED THAT THEREFORE, NOW THIS ISSUE IS COVERED BY THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF PR. CIT VS SHRI JAY SHANKAR TRADERS (P) LTD. 282 CTR 435 (D EL). HE SUBMITTED THAT IN VIEW OF THE BINDING PRECEDENT OF THE HON'BLE DELHI HIGH COURTS JUDGMENT, THE ENTIRE PROCEEDINGS OUGHT TO BE QUASHED. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT A MERE TECHNICAL DEFAULT, IF AT ALL, CANNOT VITIATE T HE ENTIRE REASSESSMENT PROCEEDINGS AND SUBMITTED THAT ON MERI TS, THE DEPARTMENT HAS A VERY STRONG CASE. HE RELIED ON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ADDITI ONS HAVE BEEN LEGALLY MADE AND THE NON-ISSUANCE OF A NOTICE SHOUL D NOT COME IN THE WAY OF TAX ADMINISTRATION. I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. IT IS SEEN THAT THE LD. CIT (A) HAS DISCUSSED AND DEALT THE ISSUE IN PARA 4.1 O F THE IMPUGNED ORDER AS UNDER:- 4.1 I HAVE CAREFULLY CONSIDERED THE RE-ASSESSMENT ORDER AND THE SUBMISSIONS FILED BY THE APPELLANT. T HE APPELLANT HAS OBJECTED REGARDING NON-ISSUE OF NOTIC E U/S 143(2) AFTER ISSUE OF NOTICE UNDER SECTION 147 OF T HE ACT. IN THE RE-ASSESSMENT ORDER, THE ASSESSING OFFICER H AS NOT MADE ANY REFERENCE TO ISSUE OF NOTICE UNDER SECTION 143(2), HOWEVER, IT IS APPARENT FROM THE ASSESSMENT ORDER THAT ENOUGH OPPORTUNITIES HAVE BEEN PROVIDED TO THE APPELLANT BY ISSUE OF STATUTORY NOTICES AND VIDE OR DER SHEET ENTRIES TO WHICH THE ASSESSEE HAS COMPLIED WI TH BY FILING REPLY DATED 27.10.2011 AND 31.10.2011. NO OBJECTION HAS BEEN RAISED BY THE AUTHORIZED REPRESENTATIVE DURING ASSESSMENT PROCEEDINGS IN COMPLIANCE WITH THE NOTICES. FURTHER, IN REGARD TO NON- ISSUE OF NOTICE UNDER SECTION 143(2), RELIANCE IS PLACED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX-II VS MADHYA BHARAT ENERGY CORPN. LTD. PASSED ON 11 JULY, 2011 IN INCOME TAX ACT, 1961 NO.950/2008. 6. THUS, IT IS UNDISPUTED THAT THE DEPARTMENT ACCEP TS THE CONTENTION OF THE ASSESSEE THAT THE NOTICE U/S 143( 2) WAS NOT ISSUED AT ALL. IN THE PRESENT APPEAL BEFORE US ALS O, THE DEPARTMENT DID NOT CONTROVERT THIS CLAIM OF THE ASS ESSEE. THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT-08 VS SHRI JAI SHIV SHANKAR TRADERS (IN I.T.A. NO. 519/ 2015 IN OR DER DATED I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 5 14.10.2015) HAS DEALT WITH THE ISSUE AT LENGTH. TH E RELEVANT PARAGRAPHS ARE REPRODUCED AS UNDER:- 6. THE AO THEN PROCEEDED TO PASS AN ASSESSMENT ORDER ON 31ST DECEMBER, 2010 WHEREBY, INTER ALIA, A N ADDITION OF RS.1 CRORE WAS MADE TO THE INCOME OF TH E ASSESSEE UNDER SECTION 68 OF THE ACT AS UNEXPLAINED CREDITS. IN THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE, INTER ALIA, RAI SED THE ISSUE THAT IN THE ABSENCE OF A NOTICE UNDER SECTION 143(2) OF THE ACT THE ORDER OF RE-ASSESSMEN T WAS INVALID. THE CIT (A) NEGATIVED THE ABOVE CONTEN TION HOLDING THAT NO SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED UNDER SECTION 143(2) OF THE ACT AND THAT QUESTIONNAIRES DATED 11TH NOVEMBER, 2003 AND 21ST JANUARY, 2004 ISSUED BY THE AO HAD PROVIDED THE ASSESSEE'S SUFFICIENT OPPORTUNITY TO SUPPORT HIS RE TURN BY DOCUMENTARY EVIDENCE. SECONDLY, IT WAS HELD THAT NON ISSUE OF NOTICE UNDER SECTION 143(2) DID NOT RENDER THE REASSESSMENT INVALID. 7. THE ASSESSEE'S FURTHER APPEAL HAS BEEN ALLOWED BY THE ITAT BY THE IMPUGNED ORDER. RELYING, INTER ALIA , ON THE DECISION OF THE SUPREME COURT IN ACIT V. HOTEL BLUE MOON (2010) 321 ITR 362 AND A PLETHORA OF JUDGMENTS OF THE HIGH COURTS, THE ITAT CONCLUDED THAT FOR COMPLE TING THE ASSESSMENT UNDER SECTION 148 OF THE ACT COMPLIANCE WITH THE PROCEDURE UNDER SECTION 143 (2) WAS MANDATORY. IT WAS HELD THAT IF NOTICE WAS NOT ISSUED TO THE ASSESSEE BEFORE COMPLETION OF THE RE- ASSESSMENT, THEN SUCH REASSESSMENT WAS NOT SUSTAINABLE IN LAW. 8. WHEN THIS APPEAL WAS FIRST LISTED BEFORE THIS C OURT ON 29 TH JULY, 2015 RELIANCE WAS PLACED BY MS SURUCHI AGGARWAL, LEARNED SENIOR STANDING COUNSEL FOR THE I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 6 REVENUE ON THE DECISION OF THIS COURT IN ' COMMISSIONER OF INCOME TAX V. MADHYA BHARAT ENERGY CORPORATION LTD . (2011) 337 ITR 389 ) DEL WHICH PURPORTED TO HOLD TH AT NON-ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT ON AN ASSESSEE PRIOR TO COMPLETION OF THE REASSESSMENT WO ULD NOT BE FATAL TO THE REASSESSMENT. SHE ALSO SOUGHT T O DISTINGUISH THE DECISION IN ACIT V. HOTEL BLUE MOON (SUPRA) ON THE GROUND THAT IT PERTAINED TO A BLOCK ASSESSMENT. 9. DR RAKESH GUPTA, LEARNED COUNSEL APPEARING FOR THE ASSESSEE, AT THE OUTSET DREW THE ATTENTION OF THIS COURT TO AN ORDER PASSED BY THIS COURT ON 17TH AUGUST, 2011 IN REVIEW PETITION NO.441/2011 IN ITA NO.950/2008 ( CIT V. MADHYA BHARAT ENERGY CORPORATION ) WHEREBY THIS COURT REVIEWED ITS MAIN JUDGMENT IN THE MATTER RENDERED O N 11TH JULY 2011 ON THE GROUND THAT THE SAID APPEAL H AD NOT BEEN ADMITTED ON THE QUESTION CONCERNING THE MANDATORY COMPLIANCE WITH THE REQUIREMENT OF ISSUAN CE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN ITS REVIEW ORDER, THIS COURT NOTED THAT AT THE TIME OF ADMISSI ON OF THE APPEAL ON 17 TH FEBRUARY, 2011 AFTER NOTICING T HAT IN THE SAID CASE THAT NO NOTICE UNDER SECTION 143(2) HAD EVER BEEN ISSUED, THE COURT HELD THAT NO QUESTION O F LAW AROSE ON THAT ASPECT. THE UPSHOT OF THE ABOVE DISCU SSION IS THAT THE DECISION OF THIS COURT IN CIT V. MADHYA BHARAT ENERGY CORPORATION (SUPRA) IS NOT OF ANY ASSISTANCE TO THE REVENUE AS FAR AS THE ISSUE IN THE PRESENT CASE IS CONCERNED. XXXXXXXXXXXX 12. THE NARRATION OF FACTS AS NOTED ABOVE BY THE COURT MAKES IT CLEAR THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE AFTER 16TH DECEMBER 2010, THE DATE ON WHICH THE ASSESSEE INFORMED THE AO THAT THE RETURN ORIGINALLY FILED SH OULD I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 7 BE TREATED AS THE RETURN FILED PURSUANT TO THE NOTI CE UNDER SECTION 148 OF THE ACT. 13. IN DIT V. SOCIETY FOR WORLDWIDE INTERBANK FINA NCIAL TELECOMMUNICATIONS (2010) (DEL), THIS COURT INVALIDATED A REASSESSMENT PROCEEDING AFTER NOTING THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED TO THE ASSESSEE PURSUANT TO THE FILI NG OF THE RETURN. IN OTHER WORDS, IT WAS HELD MANDATORY T O SERVE THE NOTICE UNDER SECTION 143(2) OF THE ACT ONLY AFTER THE RETURN FILED BY THE ASSESSEE IS ACTUALLY SCRUTINISED BY THE AO. 14. THE INTERPLAY OF SECTIONS 143 (2) AND 148 OF THE ACT FORMED THE SUBJECT MATTER OF AT LEAST TWO DECIS IONS OF THE ALLAHABAD HIGH COURT. IN CIT V. RAJEEV SHARM A (2011) 336 ITR 678 (ALL.) IT WAS HELD THAT A PLAIN READING OF SECTION 148 OF THE ACT REVEALS THAT WITHIN THE STATUTORY PERIOD SPECIFIED THEREIN, IT SHALL BE INCUMBENT TO SEND A NOTICE UNDER SECTION 143(2) OF THE ACT. IT WAS OBSERVED: THE PROVISIONS CONTAINED IN SUB-SECTION (2) OF SECTION 143 IS MANDATORY AND THE LEGISLATURE IN THEIR WISDOM BY USING THE WORD 'REASON TO BELIEVE' HAD CAST A DUTY ON THE ASSESSING OFFICER TO APPLY MIND TO THE MATERIAL ON RECORD AND AFTER BEING SATISFIED WITH REGARD TO ESCAPED LIABILITY, SHALL SERVE NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM. IN VIEW OF THE ABOVE, AFTER RECEIPT OF RETURN IN RESPONSE TO NOTICE UNDER SECTION 148, IT SHALL BE MANDATORY FOR THE AO TO SERVE A NOTICE UNDER SUB- SECTION 2 OF SECTION 143 ASSIGNING REASON THEREIN. IN ABSENCE OF ANY NOTICE ISSUED UNDER SUB-SECTION 2 OF SECTION 143 AFTER RECEIPT OF FRESH RETURN SUBMITTED BY THE ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION, THE ENTIRE PROCEDURE ADOPTED FOR ESCAPED ASSESSMENT, SHALL NOT BE VALID.' I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 8 15. IN A SUBSEQUENT JUDGMENT IN CIT V. SALARPUR COLD STORAGE (P .) LTD. (2014) 50 TAXMANN.COM 105 (ALL) IT WAS HELD AS UNDER: '10. SECTION 292 BB OF THE ACT WAS INSERTED BY THE FINANCE ACT , 2008 WITH EFFECT FROM 1 APRIL 2008. SECTION 292 BB OF THE ACT PROVIDES A DEEMING FICTION. THE DEEMING FICTION IS TO THE EFFECT THAT ONCE THE ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER THE PROVISIONS OF THE ACT, WHICH IS REQUIRED TO BE SERVED ON THE ASSESSEE, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THE ASSESSEE IS PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY THAT THE NOTICE WAS (I) NOT SERVED UPON HIM; OR (II) NOT SER VED UPON HIM IN TIME; OR (III) SERVED UPON HIM IN AN IMPROPER MANNER. IN OTHER WORDS, ONCE THE DEEMING FICTION COMES INTO OPERATION, THE ASSESSEE IS PRECLUDED FROM RAISING A CHALLENGE ABOUT THE SERVIC E OF A NOTICE, SERVICE WITHIN TIME OR SERVICE IN AN IMPROPER MANNER. THE PROVISO TO SECTION 292 BB OF THE ACT, HOWEVER, CARVES OUT AN EXCEPTION TO THE EFFECT THAT THE SECTION SHALL NOT APPLY WHERE THE ASSESSEE HAS RAISED AN OBJECTION BEFORE THE COMPLETION OF THE ASSESSMENT OR REASSESSMENT. SECTION 292 BB OF THE ACT CANNOT OBVIATE THE REQUIREMENT OF COMPLYING WITH A JURISDICTIONAL CONDITION. FOR THE ASSESSING OFFICER TO MAKE AN ORDER OF ASSESSMENT UNDER SECTION 143 (3) OF THE ACT, IT IS NECESSARY TO ISSUE A NOTICE UNDER SECTION 143 (2) OF THE ACT AND IN THE ABSENCE OF A NOTICE UNDER SECTION 143 (2) OF THE ACT, THE ASSUMPTION OF JURISDICTION ITSELF WOULD BE INVALID.' I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 9 16. IN THE SAME DECISION IN V. SALARPUR COLD STORAG E (P.) LTD. (SUPRA), THE ALLAHABAD HIGH COURT NOTICED THAT THE DECISION OF THE SUPREME COURT IN ACIT V. HOTEL BLUE MOON (SUPRA) WHERE IN RELATION TO BLOCK ASSESSMENT, THE SUPREME COURT HELD THAT THE REQUIREMENT TO ISSUE NOTICE UND ER SECTION 143(2) WAS MANDATORY. IT WAS NOT 'A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THERE FORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH.' 17. THE MADRAS HIGH COURT HELD LIKEWISE IN SAPTHAGIRI FINANCE & INVESTMENTS V. ITO (2013) 90 DTR 289 (MAD). THE FACTS OF THAT CASE WERE THAT A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE SEEKING TO REOPEN THE ASSESSMENT FOR AY 2000-01. HOWEVER, THE ASSESSEE DID NOT FILE A RETURN AND THEREFORE A NOTI CE WAS ISSUED TO IT UNDER SECTION 142 (1) OF THE ACT. PURSUANT THERETO, THE ASSESSEE APPEARED BEFORE THE AO AND ST ATED THAT THE ORIGINAL RETURN FILED SHOULD BE TREATED AS A RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. THE HIGH COURT OBSERVED THAT IF THEREAFTER, TH E AO FOUND THAT THERE WERE PROBLEMS WITH THE RETURN WHIC H REQUIRED EXPLANATION BY THE ASSESSEE THEN THE AO OU GHT TO HAVE FOLLOWED UP WITH A NOTICE UNDER SECTION 143(2) OF THE ACT. IT WAS OBSERVED THAT: 'MERELY BECAUSE THE MATTER WAS DISCUSSED WITH THE ASSESSEE AND THE SIGNATURE IS AFFIXED IT DOES NOT MEAN THE REST OF THE PROCEDURE OF NOTICE UNDER SECTION 143(2) OF THE ACT WAS COMPLIED WITH OR THAT ON PLACING THE OBJECTION THE ASSESSEE HAD WAIVED THE NOTICE FOR FURTHER PROCESSING OF THE REASSESSMENT PROCEEDINGS. THE FACT THAT ON THE NOTICE ISSUED U/S 143(2) OF THE ACT, THE ASSESSEE H AD PLACED ITS OBJECTION AND REITERATED ITS EARLIER RET URN FILED AS ONE FILED IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT AND THE OFFICER HAD ALSO NOTED THAT THE SAME WOULD BE CONSIDERED FOR COMPLETING OF I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 10 ASSESSMENT, WOULD SHOW THAT THE AO HAS THE DUTY OF ISSUING THE NOTICE UNDER SECTION 143(2) TO LEAD ON TO THE PASSING OF THE ASSESSMENT. IN THE CIRCUMSTANCES , WITH NO NOTICE ISSUED U/S 143(2) AND THERE BEING NO WAIVER, THERE IS NO JUSTIFIABLE GROUND TO ACCEPT TH E VIEW OF THE TRIBUNAL THAT THERE WAS A WAIVER OF RIG HT OF NOTICE TO BE ISSUED U/S 143(2) OF THE ACT.' XXXXXXXXX 19. THE RESULTANT POSITION IS THAT AS FAR AS THE PR ESENT CASE IS CONCERNED THE FAILURE BY THE AO TO ISSUE A NOTICE TO THE ASSESSEE UNDER SECTION 143(2) OF THE ACT SUBSEQUENT TO 16TH DECEMBER 2010 WHEN THE ASSESSEE MADE A STATEMENT BEFORE THE AO TO THE EFFECT THAT T HE ORIGINAL RETURN FILED SHOULD BE TREATED AS A RETURN PURSUANT TO A NOTICE UNDER SECTION 148 OF THE ACT, IS FATAL TO THE ORDER OF RE-ASSESSMENT. 7. RESPECTFULLY FOLLOWING THE RATIO OF JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT-08 VS SHRI JAI SHIV SHANKAR TRADERS PVT. LTD. (SUPRA), WE QUASH THE ENT IRE REASSESSMENT PROCEEDINGS BY HOLDING THAT THE NON-IS SUANCE OF THE STATUTORY NOTICE U/S 143(2) IN THE INSTANT CASE IS AN INCURABLE DEFECT AND THEREFORE THE ENTIRE REASSESSMENT PROCEE DINGS WERE BAD IN LAW AND VOID AB INITIO. GROUND NO. 5 OF THE ASSESSEES APPEAL IS ACCORDINGLY ALLOWED AND IN VIEW OF OUR FI NDINGS ON THIS GROUND, THE OTHER GROUNDS ARE DISMISSED AS HAVIN G BECOME IN FRUCTUOUS. I.T.A. 3403/DEL/2013 ASSESSMENT YEAR 2004-05 11 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29TH APRIL, 2 016. SD/- SD/- (L.P. SAHU) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: THE 29 TH OF APRIL, 2016 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 4. DR, ITAT BY ORDER ASSTT. REGISTRAR