Meenakshi Agarwal, Delhi V. ITO, New Delhi

ITA 4171/DEL/2015

• Counselvise Citation: 417120114 RSA 2015
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 14-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 26-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Retrospective amendment; Assessment record; Reason to believe; Reassessment proceedings
• Section: 143(3); 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NOS. 4171/DEL/2015 AY: 2003-04 MS. MEENAKSHI AGGARWAL, VS. ITO, WARD 33(2), C/O KAPIL GOEL, ADV. NEW DELHI F-26/124, SECTOR-7, ROHINI, DELHI 110 085 (PAN: AAHPA6305P) ITA NOS. 4172/DEL/2015 AY: 2003-04 MS. SAVITRI AGGARWAL, VS. ITO, WARD 33(2), C/O KAPIL GOEL, ADV. NEW DELHI F-26/124, SECTOR-7, ROHINI, DELHI 110 085 (PAN: AAHPA2498R) ITA NOS. 4173/DEL/2015 AY: 2003-04 MR. YOGESH AGGARWAL, VS. ITO, WARD 33 (2), C/O KAPIL GOEL, ADV. NEW DELHI F-26/124, SECTOR-7, ROHINI, DELHI 110 085 (PAN: AAGPA5008E) ITA NOS. 4174/DEL/2015 AY: 2003-04 MR. JHABERMAL AGGARWAL, VS. ITO, WARD 33(2), C/O KAPIL GOEL, ADV. NEW DELHI F-26/124, SECTOR-7, ROHINI, DELHI 110 085 (PAN: AADPA8070F) ITA NOS. 4175/DEL/2015 AY: 2003-04 BABY LAKSHYA GUPTA, VS. ITO, WARD 33 (2), C/O KAPIL GOEL, ADV. NEW DELHI F-26/124, SECTOR-7, ROHINI, DELHI 110 085 (PAN: AATPA7142G) (APPELLANTS) (RESPONDENTS) APPELLANT BY : SH. KAPIL GOEL, ADV. RESPONDENT BY : MRS. RAKHI VIMAL, JCIT ITA NOS. 4171-4175/DEL/2015 2 ORDER THESE ARE THE APPEALS FILED BY THE DIFFERENT ASSES SEES AGAINST THE COMMON ORDER DATED 28.4.2015 PASSED BY THE LD.CIT(A)-17, NEW DELHI ALL FOR THE ASSESSMENT YEAR 2003-04. IN THESE APPEALS THE ASSES SEE HAS TAKEN UP THE GROUND THAT NO VALID NOTICE U/S. 143(2) OF THE I.T. ACT WAS SE RVED UPON THE ASSESSEE AFTER FILING OF RETURN U/S. 148 OF THE I.T. ACT. AS THIS A COMMON GROUND, WE ARE DISPOSING OF THESE APPEALS BY PASSING A COMMON ORDER FOR THE SAKE OF BREVITY, WE FIRST DEAL WITH ITA NO. 4171/DEL/2015 (AY 2003-04). 2. LD. CIT(A) HAS DISCUSSED THE ISSUE IN DISPUTE AT PARA NO. 6, AT PAGE NO. 29 IN HIS ORDER. IN THIS PARAGRAPH THE LD. CIT(A) HELD THAT THE SERVICE OF NOTICE U/S. 143(2) IS ONLY AN ADMINISTRATIVE REQUIREMENT AND NOT A LEG AL REQUIREMENT. HE CONCLUDED AS FOLLOWS:- THUS, IT IS HELD THAT THE AO HAS NOT ERRED IN NOT ISSUING THE NOTICE U/S. 143(2) WITHOUT HAVING THE ROI ON THE RECORD AFTER T HE ASSESSEES LETTER DATED 26.11.2010 REQUESTING THE AO TO TREAT THE ORI GINAL ROI AS ROI FILED IN RESPONSE TO THE NOTICE U/S. 148. 3. THE ASSESEE FILED A COPY OF THE ORDER SHEET ENTR IES FROM THE ASSESSMENT RECORDS, DULY CERTIFIED BY THE AO. A PERUSAL OF THE SAME DE MONSTRATES THAT NO NOTICE U/S. 143(2) OF THE ACT WAS ISSUED, AFTER THE ASSESSEE FI LED A LETTER DATED 26.11.2010, REQUESTING THE AO TO TREAT THE RETURN OF INCOME ORI GINALLY FILED AS A ROI FILED IN RESPONSE TO THE NOTICE U/S. 148 DATED 30.3.2010. 4. ON THIS FACTUAL MATRIX, I FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE ITAT, C B ENCH, BANGALORE IN ITS ORDER DATED 10.10.2014 IN THE CASE OF SHRI GN MOHAN RAJU VS. ITO PASSED IN ITA NO. 242 & 243(BANG)2013 (AYRS 2006-07 & 2007-08), HAS BEEN HELD AS FOLLOWS:- ITA NOS. 4171-4175/DEL/2015 3 7. THIS BRINGS US TO THE CRUX OF THE ISSUE I.E. WH ETHER NOTICES UNDER SECTION 143(2) IS MANDATORY IN A REOPENED PRO CEDURE AND WHETHER NOTICES ISSUED PRIOR TO THE REOPENING WOULD SATISFY THE REQUIREMENT SPECIFIED U/S 143(2) OF THE ACT. THAT ISSUE OF A NO TICE U/S 143(2) OF THE ACT, IS MANDATORY EVEN IN A RE-ASSESSMENT PROCEEDIN G INITIATED U/S 148 OF THE ACT HAS BEEN CLEARLY LAID DOWN BY THE HON'BL E DELHI HIGH COURT IN THE CASE OF M/S ALPINE ELECTRONICS ASIA PTE LTD. , (SUPRA). HON'BLE DELHI HIGH COURT HAD REACHED THIS CONCLUSION AFTER CONSIDERING THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF H OTEL BLUE MOON (SUPRA). AT PARA-24 OF THE JUDGMENT THEIR LORDSHIP HAS HELD THAT SECTION 143(2) WAS APPLICABLE TO A PROCEEDINGS U/S 147/148 ALSO, SINCE PROVISO TO SECTION 148 OF THE ACT, GRANTED CERTAIN SPECIFIC LIBERTIES TO THE REVENUE, WITH REGARD TO EXTENSION OF TIME FOR SERVI NG SUCH NOTICES. NO DOUBT, HON'BLE MADRAS HIGH COURT IN THE CASE OF ARE VA T AND D INDIA LTD.,(SUPRA) HAD HELD THAT ISSUE OF NOTICE U/S 143( 2) WAS PROCEDURAL IN NATURE. HOWEVER, CO-ORDINATE BENCH IN THE CASE OF M /S AMIT SOFTWARE TECHNOLOGIES PVT. LTD.,(SUPRA) AFTER CONSIDERING TH E DECISION OF THE HON'BLE MADRAS HIGH COURT AS WELL AS DELHI HIGH COU RT HAD HELD THAT SECTION 143(2)OF THE ACT, WAS A MANDATORY REQU IREMENT AND NOT A PROCEDURAL ONE. OF COURSE, IN THE CASE BEFORE US, A NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE, BUT ON THE DATE WHEN SUCH NOTICE WAS ISSUED VIZ., 23-09-2010 ASSESSEE HAD NOT FILED ANY RETURN PURSUANT TO THE REOPENING NOTICE UNDERSECTION 148 OF THE ACT . FIRST INSTANCE WHEN THE ASSESSEE REQUESTED THE AO TO TREAT THE RETURNS ORIGINALLY FILED BY IT AS RETURNS FILED PURSUANT TO THE NOTICES U/S 148 OF THE ACT, WAS ON 05-10- 2010 WHICH IS CLEAR FROM THE NARRATION IN THE ORDER SHEET WHICH IS REPRODUCED HERE UNDER; ' SRI M.SRINIVAS RAO MANNAN, CA APPEARED IN RESPONS E TO NOTICES ISSUED U/S 143(2) & 142(1) AND REQUESTED THAT THE R ETURN OF INCOME FILED ORIGINALLY SHALL BE TREATED AS RETURN OF INCOME FIL ED IN RESPONSE TO NOTICE U/S 148. HE HAS BEEN ASKED TO EXPLAIN AS TO WHY A S UM OF RS.1,00,00,000/- (RS. ONE CRORE) RECEIVED FROM WIFI NETWORKS PVT.LTD., SHOULD NOT BE TREATED AS REVENUE RECEIPT AND TAXED ACCORDINGLY. THE CASE IS POSTED FOR FINAL HEARING ON 20-10-2010 AT 3 .30 PM. NO FURTHER ADJOURNMENT WILL BE GRANTED. IF NO COMPLIANCE IS FO RTHCOMING ON THAT DAY, ASSESSMENT WILL BE COMPLETED BRINGING TO TAX R S.1.00 (RS. ONE CRORE) AS REVENUE RECEIPT AS PER THE PROVISIONS OF SEC.28(VA) OF THE ACT.' ITA NOS. 4171-4175/DEL/2015 4 8. A LOOK AT SECTION 143(2) IS CALLED FOR AT THIS J UNCTURE. IT IS REPRODUCED HEREUNDER; '143(2) WHERE A RETURN HAS BEEN FURNISHED UNDER SEC TION 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION(1) OF SECTIO N 142, THE AO SHALL- I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN I S INADMISSIBLE, SERVE ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUI RE HIM, ON A DATE TO BE SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRO DUCED, ANY EVIDENCE OR PARTICULARS SPECIFIED THEREIN OR ON WHICH THE AS SESSEE MAY RELY, IN SUPPORT OF SUCH CLAIM; (PROVIDED THAT NO NOTICE UND ER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY O F JUNE, 2003) II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE(1) , IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HA S NOT UNDER PAID HE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE R EQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICER OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASS ESSEE MAY RELY IN SUPPORT OF THE RETURN. (PROVIDED THAT NO NOTICE UND ER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONT HS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED). ONCE THE ORIGINAL RETURN FILED BY THE ASSESSEE WAS SUBJECT TO PROCESSING U/S 143(1) OF THE ACT, THE PROCEDURE OF ASSESSMENT PURSUANT TO SUCH A RETURN, IN OUR OPINION CAME TO AN END, SINCE AO DID NOT ISSUE ANY NOTICE WITHIN THE 6 MONTHS PERIOD MENTIONED IN PROVISO TO SECTION 143(2)(II). NO DOUBT, IF THE INCOME HAS BEEN UNDERSTATED OR THE INCOME HAS ESCAPED ASSESSMENT, AN AO IS HAVING THE POWER TO ISSUE NOTI CE U/S 148 OF THE IT ACT. NOTICE U/S 148 OF THE ACT, ISSUED TO THE ASSES SEE REQUIRED IT TO FILE A RETURN WITHIN 30 DAYS FROM THE DATE OF SERVICE OF S UCH NOTICE. THERE IS NO PROVISION IN THE ACT, WHICH WOULD ALLOW AN AO TO TR EAT THE RETURN WHICH WAS ALREADY SUBJECT TO A PROCESSING U/S 143(1) OF T HE IT ACT, AS A RETURN FILED PURSUANT TO A NOTICE SUBSEQUENTLY ISSUED U/S 148 OF THE ACT. HOWEVER, ONCE AN ASSESSEE ITSELF DECLARE BEFORE THE AO THAT HIS EARLIER RETURN COULD BE TREATED AS FILED PURSUANT TO NOTICE U/S 148 OF THE IT ACT, THREE RESULTS CAN FOLLOW. ASSESSING OFFICER CAN EIT HER SAY NO, THIS WILL NOT BE ACCEPTED, YOU HAVE TO FILE A FRESH RETURN OR HE CAN SAY THAT 30 ITA NOS. 4171-4175/DEL/2015 5 DAYS TIME PERIOD BEING OVER I WILL NOT TAKE COGNIZA NCE OF YOUR REQUEST OR HE HAS TO ACCEPT THE REQUEST OF THE ASSESSEE AND TR EAT THE EARLIER RETURNS AS ONE FILED PURSUANT TO THE NOTICE U/S 148 OF THE IT ACT. IN THE FORMER TWO SCENARIOS, AO HAS TO FOLLOW THE PROCEDURE SET O UT FOR A BEST OF JUDGMENT ASSESSMENT AND CANNOT MAKE AN ASSESSMENT U NDER SECTION 143(3). ON THE OTHER HAND, IF THE AO CHOSE TO ACCEP T ASSESSEE'S REQUEST, HE CAN INDEED MAKE AN ASSESSMENT UNDER SECTION 143( 3). IN THE CASE BEFORE US, ASSESSMENTS WERE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147. OR IN OTHER WORDS AO ACCEPTED THE REQUEST OF THE ASSESSEE. THIS IN TURN MAKES IT OBLIGATORY TO ISSUE NOTICE U/S 143(2) AFTER THE REQUEST BY THE ASSESSEE TO TREAT HIS EARLIER RE TURN AS FILED IN PURSUANCE TO NOTICES U/S 148 OF THE IT ACT WAS RECE IVED. THIS REQUEST, IN THE GIVEN CASE, HAS BEEN MADE ONLY ON 05-10-2010. A NY ISSUE OF NOTICE PRIOR TO THAT DATE CANNOT BE TREATED AS A NOTICE ON A RETURN FILED BY THE ASSESSEE PURSUANT TO A NOTICE U/S 148 OF THE ACT. O R IN OTHER WORDS, THERE WAS NO VALID ISSUE OF NOTICE U/S 143(2) OF THE IT A CT, AND THE ASSESSMENTS WERE DONE WITHOUT FOLLOWING THE MANDATORY REQUIREME NT U/S 143(2) OF THE IT ACT. THIS IN OUR OPINION, RENDER THE SUBSEQU ENT PROCEEDINGS ALL INVALID. LEARNED CIT(A) HAD ONLY ADJUDICATED ON A P OSITION WHERE THERE WAS NO SERVICE OF NOTICES U/S 143(2) OF THE IT ACT. HE HAD NOT DEALT WITH THE SCENARIO, WHERE NOTICE WAS ISSUED PRIOR TO THE FILING OF RETURN BY THE ASSESSEE. WE THEREFORE, QUASH THE ASSESSMENT DONE F OR THE IMPUGNED ASSESSMENT YEARS. SINCE THE APPEALS OF THE ASSESSEE ARE ALLOWED ON ITS GROUND 3, OTHER GROUNDS ARE NOT ADJUDICATED. - ITAT, E DELHI BENCH DECISION DATED 08.4.2015 PASS ED IN THE CASE OF ITO VS. NASEMAN FARMS PVT. LTD. & ORS. IN ITA NO. 1175/ DEL/2011 (AY 2002- 03) WHEREIN THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE APEX COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (2014) 321 ITR 362 (SC). THE TRIBUNAL HAS HELD AS UNDER:- 15. IN THE LIGHT OF THE ABOVE, WE ARE OF THE VIEW THAT THE AO HAS NOT ISSUED NOTICE U/S. 143(2) OF THE ACT WHICH IS MANDA TORY. WE ARE ALSO OF THE VIEW THAT IN COMPLETING THE ASSESSMENT U/S. 148 OF THE ACT, COMPLIANCE OF THE PROCEDURE LAID DOWN U/S. 142 AND 143(2) IS ITA NOS. 4171-4175/DEL/2015 6 MANDATORY. AS PER RECORD, WE FIND THAT THERE WAS NO NOTICE ISSUED U/S. 143(2) OF THE ACT WHICH IS VERY MUCH ESSENTIAL FO R REASSESSMENT AND IT IS A FAILURE ON THE PART OF THE AO FOR NOT COMPLYIN G WITH THE PROCEDURE LAID DOWN IN SECTION 143(2) OF THE ACT. IF THE NOT ICE IS NOT ISSUED TO THE ASSESSEE BEFORE COMPLETION OF THE ASSESSMENT, THEN THE REASSESSMENT IS NOT SUSTAINABLE IN THE EYES OF LAW AND DESERVES TO BE CANCELLED. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE PRESENT CAS E, THE ISSUE IN DISPUTE RAISED IN ADDITIONAL GROUND RELATING TO NON ISSUE O F THE MANDATORY NOTICE U/S. 143(2) OF THE ACT IS DECIDED IN FAVOUR OF THE ASSESSEE AND WE HOLD THAT THE IMPUGNED ASSESSMENT ORDER DATED 31.12 .2009 PASSED U/S. 147/143(3) OF THE ACT BY THE AO AS INVALID. OUR V IEW IS SUPPORTED BY THE VARIOUS JUDGMENTS OF THE HONBLE SUPREME COURT, AND HONBLE JURISDICTIONAL HIGH COURT. THE RELEVANT PORTION OF THE HEAD- NOTES OF VARIOUS JUDGMENTS OF THE HONBLE COURTS ARE REPRODU CED AS UNDER:- ACIT & ANR. VS. HOTEL BLUE MOON: [(2010) 321 ITR 3 62 (SC)] HELD: IT IS MANDATORY FOR THE AO TO ISSUE NOTICE U /S 143 (2). THE ISSUANCE AND SERVICE OF NOTICE U/S 143 (2) IS MANDA TORY AND NOT PROCEDURAL. IF THE NOTICE IS NOT SERVED WITHIN THE PRESCRIBED P ERIOD, THE ASSESSMENT ORDER IS INVALID REASSESSMENT-----NOTICE-----ASSESS EE INTIMATING ORIGINAL RETURN BE TREATED AS FRESH RETURN---REASSESSMENT PR OCEEDINGS COMPLETED DESPITE ASSESSEE FILING AFFIDAVIT DENYING SERVICED OF NOTICE UNDER SECTION 143(2)----ASSESSING OFFICER NOT REPRESENTING BEFORE COMMISSIONER (APPEALS) THAT NOTICE HAD BEEN ISSUED---- REASSESSM ENT ORDER INVALID DUE TO WANT OF NOTICE UNDER SECTION 143(2)--- INCOME-TAX A CT, 1961, SS. 143, 147, 148(1), PROV.----ITO V. R.K. GUPTA [308 ITR 49 (DEL HI)TRIBU., CIT VS. VISHU & CO. LTD. IN ITA NO. 470 OF 2008 (20 10) 230 CTR (DEL) 62 ASSESSMENT VALIDITY NON SERVICE OF NOTICE UNDER SECTION 143(2) WITHIN TIME NOTICE SERVED ON THE LAST DATE AFTER OFFICE HOURS BY AFFIXTURE AS NO AUTHORIZED PERSON WAS PRESENT AT ASSESSEES PREMISE S IS NOT A VALID ITA NOS. 4171-4175/DEL/2015 7 SERVICE OF NOTICE ASSESSMENT FRAMED IN PURSUANCE OF SUCH NOTICE IS NOT VALID IT IS IMMATERIAL THAT THE ASSESSEE APPEARE D IN THE PROCEEDINGS. CIT VS. CEBON INDIA LTD. (2012) 347 ITR 583 (P&H) 5. WE FIND THAT CONCURRENT FINDING HAS BEEN RECORDE D BY THE CIT(A) AS WELL THE TRIBUNAL ON THE QUESTION OF DATE OF SER VICE OF NOTICE. NOTICE WAS NOT SERVED WITHIN THE STIPULATED TIME. MERE GIVING OF DISPATCH NUMBER WILL NOT RENDER THE SAID FINDING TO BE PERVERSE. IN ABSE NCE OF NOTICE BEING SERVED, THE AO HAD NO JURISDICTION TO MAKE ASSESSME NT. ABSENCE OF NOTICE CANNOT BE HELD TO BE CURABLE UNDER S 292BB OF THE A CT. CIT VS.MR. SALMAN KHAN, ITA NO.508 OF 2010 1. IN THE PRESENT CASE, REASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W 147 OF THE INCOME TAX ACT, 1961 IS HELD TO BE BAD I N LAW IN VIEW OF THE FACT THAT THE ASSESSING OFFICER HAS NOT ISSUED NOTICE UN DER SECTION 143(2) AFTER ISSUING NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. THIS COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX VIS. MR. SALMAN KHAN [INCOME TAX APPEAL NO.2362 OF 2009)DECIDED ON 1ST D ECEMBER, 2009 HAS CONSIDERED SIMILAR QUESTION AND HAS HELD THAT IN TH E ABSENCE OF NOTICE UNDER SECTION 143(2) (PRIOR TO THE INSERTION OF SECTION 2 92BB), THE REASSESSMENT ORDER CANNOT BE SUSTAINED. IN THE PRESENT CASE, THE REASSESSMENT YEAR INVOLVED RELATES TO THE PERIOD PRIOR TO THE INSERTI ON OF SECTION 292BB. IN THIS VIEW OF THE MATTER, THE APPEAL IS DISMISSED WITH NO ORDER AS TO COSTS. DCIT VS. M/S SILVER LINE, ITA NO.1809,1504,1505 & 1 506/DEL/2013 VII. THE HON'BLE ITAT OF AGRA BENCH, IN THE CASE OF ITO V. ALIGARH AUTO CENTRE REPORTED IN 152 TTJ (AGRA) 767, ON AN IDENTI CAL ISSUE THAT OF THE PRESENT ISSUE, HAS RECORDED ITS FINDINGS AS UNDER: '5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE FILED ORIGINAL RETURN OF INCOME AND AT THE REASSESSMENT PROCEEDINGS, THE ASSESSEE CONTENDED BE FORE THE AO THAT THE ORIGINAL RETURN FILED EARLIER MAY BE TREATED TO HAV E BEEN FILED IN RESPONSE TO THE NOTICE U/S. 147, WHICH IS ALSO SUPPORTED BY ORD ER SHEET ENTRY DATED 09.08.2006 (PB-20). IT IS ALSO NOT IN DISPUTE THAT AO NEVER ISSUED ANY ITA NOS. 4171-4175/DEL/2015 8 NOTICE U/S. 143(2) OF THE IT ACT. THE REVENUE MEREL Y CONTENDED THAT THE CIT (A) SHOULD HAVE APPRECIATED THE PROVISIONS OF SECTI ON 292BB OF THE IT ACT. SECTION 292 BB OF THE IT ACT PROVIDES AS UNDER: '292BB. WHERE AN ASSESSEE HAS APPEARED IN ANY PROCE EDING OR CO-OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSES SMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WH ICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN T IME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER TH IS ACT 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: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPL ETION OF SUCH ASSESSMENT OR REASSESSMENT.' THE ABOVE PROVISION HAS BEEN INSERTED BY THE FINANC E ACT, 2008 W.EF. 01.04.2008. ITAT, DELHI SPECIAL BENCH IN THE CASE O F KUBER TOBACCO PRODUCT PVT. LTD. VS. DCIT, 117ITD 273 HELD THAT SE CTION 292BB HAS BEEN INSERTED BY FINANCE ACT, 2008, HAS NO RETROSPECTIVE EFFECT AND IS TO BE CONSTRUED PROSPECTIVELY. THE ASSESSMENT ORDER UNDER APPEAL IS 2001-02. THEREFORE, THE PROVISION OF SECTION 292BB OF THE IT ACT WOULD NOT APPLY IN THE CASE OF THE ASSESSEE. FURTHER, NO NOTICE U/S. 1 43(2) HAS BEEN ISSUED OR SERVED UPON THE ASSESSEE. THEREFORE, THE DECISION O F HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CEBON INDIA LTD. (SUPRA) SQUARELY APPLIES AGAINST THE REVENUE. IT WAS HELD IN THIS CA SE THAT ABSENCE OF NOTICE IS NOT CURABLE DEFECT U/S. 292BB OF THE IT ACT. CONSID ERING THE ABOVE DISCUSSION AND THE CASE LAWS CITED ABOVE, THE SOLE OBJECTION OF THE REVENUE IS NOT MAINTAINABLE. THEREFORE, THE ID. CIT (A) WAS JUSTIFIED IN SETTING ASIDE THE ENTIRE ASSESSMENT ORDER. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE ID. CIT (A) FOR INTERFERENCE. ' ITA NOS. 4171-4175/DEL/2015 9 (V) THE HON'BLE MUMBAI BENCH OF THE ITAT HAS, IN T HE CASE OF SANJEEV R ARORA V. ACIT [IT (SS)A NO.103/MUML2004 DATED 25.7. 2012], RECORDED ITS FINDINGS AS UNDER. 'EVEN, THE IRREGULARITY IN PROPER SERVICE OF NOTICE WHICH CAN BE TREATED AS CURABLE UNDER SECTION 292B OF THE INCOME-TAX ACT IS ONLY IN THE CASES WHERE THE NOTICE UNDER SECTION 143(2) WAS ISSUED PROPERLY AND WITHIN THE PERIOD OF LIMITATION AND THE ASSESSEE DID NOT RAISE ANY OB JECTION REGARDING THE SERVICE OF THE NOTICE DURING THE ASSESSMENT PROCEED INGS AND ALSO PARTICIPATED IN THE ASSESSMENT PROCEEDINGS THEN AT A LATER STAGE THE ASSESSEE IS PRECLUDED FROM RAISING SUCH OBJECTION. THEREFORE, THE PROVISIONS OF SECTION 292B ARE NOT APPLICABLE IN THE CASE WHER E THE ASSESSING OFFICER HAS NOT AT ALL ISSUED NOTICE UNDER SECTION 143 (2) WITHIN THE PERIOD AS PRESCRIBED.' 7.9.TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE ISSUE AS DELIBERATED UPON IN THE FORE-GOING PARAGRAPHS AND A LSO IN VIEWS OF THE JUDICIAL PRONOUNCEMENTS (SUPRA), WE ARE OF THE VIEW THAT THE RE- ASSESSMENT'S MADE FOR THE ASSESSMENT YEARS UNDER CO NSIDERATION HAVE BECOME INVALID FOR NOT HAVING SERVED THE MANDATORY NOTICE U/S 43(2) OF THE ACT ON THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 7.10WE HAVE SINCE DECIDED THAT THE RE-ASSESSMENT PR OCEEDINGS CONCLUDED U/S 147 R/W 143(3) OF THE ACT WERE INVALID FOR THE AYS UNDER DISPUTE, THE ISSUES RAISED BY THE REVENUE IN ITS APPEALS AND ALS O THE CROSS OBJECTIONS OF THE ASSESSEE FIRM BASED ON THE INVALID ASSESSMENT O RDERS HAVE NOT BEEN ADDRESSED TO. 16. IN THE BACKDROP OF THE AFORESAID DISCUSSIONS AN D PRECEDENTS RELIED UPON, WE FIND THAT THE AO HAS NOT ISSUED THE NOTICE U/S 143(2) OF THE ACT IN THIS CASE BEFORE COMPLETING THE SCRUTINY ASSESSMENT , THEREFORE THE IMPUGNED ASSESSMENT ORDER BEFORE US IS INVALID, VOID ABNITIO AND SO THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW AND HEN CE, WE CANCEL THE SAME BY ALLOWING THE ADDITIONAL GROUND RAISED IN THE CROSS OBJECTION FILED BY THE ASSESSEE ON THIS ISSUE. ITA NOS. 4171-4175/DEL/2015 10 17. IN THE RESULT, THE CROSS OBJECTION FILED BY TH E ASSESSEE IS ALLOWED. SINCE THE ASSESSMENT ORDER IS HELD TO BE VOID ABNIT IO, THE OTHER GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION HAVE BECOME ACADEMIC IN NATURE, HENCE, THE SAME ARE NOT BEING ADJUDICATED U PON. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE COOR DINATE BENCH, I HOLD THAT THE NON-ISSUE OF NOTICE U/S. 143(2) AFTER FILING OF THE RETURN OF THE ASSESSEE, BY WAY OF LETTER, MAKES THE ASSESSMENT ORDER PASSED U/S. 143 (3) R.W.S. 147 BAD IN LAW. HENCE, I QUASH THE SAME AND ALLOW THIS GROUND OF APPEAL IN F AVOUR OF THE ASSESSEE. SINCE I HAVE ALREADY QUASHED THE ASSESSMENT PROCEEDINGS ON THIS JURISDICTIONAL GROUND, I DO NOT DEEM IT NECESSARY TO ADJUDICATE THE OTHER GROUNDS RAISED BY THE ASSESSEE ON THE NON- SERVICE OF THE NOTICE U/S. 148 ETC. AS IT WOULD BE AN ACADEMIC EXERCISE. 6. THE FACTS IN ALL THE APPEALS LISTED ABOVE, ADMI TTEDLY, ARE THE SAME. HENCE, I HOLD THAT THE ASSESSMENT ORDER PASSED IN ALL THE CASES A RE BAD IN LAW AND WITHOUT JURISDICTION AND NO NOTICE U/S. 143(2) OF THE ACT W AS SERVED ON THE ASSESSEE AFTER THE FILING OF THE ROI BY WAY OF LETTER BY THE ASSESSEE. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH OCTOBER,2015. SD/- (J.SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED: THE 16 TH OCTOBER, 2015 *SR BHATNAGAR* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2. RESPONDENT; 3. CIT; 4. CIT(A); 5. DR; 6. GUARD FILE BY ORD ER ASSTT. REGISTRAR