Atul Kumar Jain, Meerut V. ITO, Ward-1(1), Meerut

ITA 4677/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1251 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: DEEPAK JAIN CA SHRI VIRAL JAIN
• Section: 201; 292BB; 143(2); 147; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE , JUDICIAL MEMBER ITA NO. 4677 /DEL/20 1 8 [A.Y 20 1 0 - 1 1 ] SHRI ATUL KUMAR JAIN VS. THE INCOME TAX OFFICER 12 - 13, SADAR CHOWK BAZAR WARD 1(1) MEERUT CANTT. MEERUT PAN: AA MPJ 9787 H (APPLICANT) (RESPONDENT) ASSESSEE BY : SH RI DEEPAK JAIN, CA SHRI VIRAL JAIN, CA DEPARTMENT BY : SH RI S.L. ANURAGI, SR. DR DATE OF HEARING : 0 4 . 0 9 .201 9 DATE OF PRONOUNCEMENT : 0 4 . 0 9 .201 9 ORDER PER N.K. BILLAIYA , ACCOUNTANT MEMBER, TH IS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] , MEERUT DATED 2 4 . 0 4 .201 8 PERTAINING TO ASSESSMENT YEAR 20 1 0 - 1 1 . 2 2. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 3. ASSESSMENT HAS BEEN FRAMED U/S 144 R.W.S 147 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] VIDE ORDER DATED 22.12.2017. A PERUSAL OF THE ORDER SHEET ENTRIES, EXHIBITED AT PAGES 13 TO 15 OF THE PAPER BOOK CLEARLY REVEALS THAT THE ASSESSING OFFICER HAS NEVER ISSUED NOTICE U/S 143(2) OF THE ACT. ISSUE OF NOTICE U/S 143(2) OF THE ACT IS MANDATORY AND NON - ISSUANCE OF SUCH NOTICES MAKES THE ASSESSMENT ORDER NULL AND VOID , AB INITIO. THIS ISSUE HAS BEEN WELL SETTLED BY THE HON'BLE SUPREME COURT IN THE CASE OF LAXMAN DAS S KHANDELWAL IN CIVIL APPEAL NOS. 6261 & 6262 /2019 WHEREIN THE HON'BLE SUPREME COURT HAS REITERATED THE RATIO LAID DOWN IN THE CASE OF HOTEL BLUE MOON 3 SCC 259. THE RELEVANT FINDINGS READ AS UNDER: 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 BLUE MOONS CASE. THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 292BB OF THE ACT. 3 9 . A CCORDING 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. I HE SCOPE OF THE PROVISION IS TO MAKE 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 NOTICE MUST HAV E 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. 10 . SINCE THE FACTS ON RECORD ARE CLEAR THAT NO NOTICE UNDER S ECTION 143(2) OF THE ACT WAS EVER ISSUED BY THE DEPARTMENT, THE FINDINGS RENDERED BY THE HIGH COURT AND TRIBUNAL AND THE CONCLUSION ARRIVED AT WERE CORRECT. WE, THEREFORE, SEE NO REASON TO TAKE A DIFFERENT VIEW IN THE MATTER. 4. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT [SUPRA], WE HOLD THAT THE ASSESSMENT ORDER IS BAD IN LAW AND DESERVES TO BE QUASHED. 4 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 46 77 /DEL/201 8 IS ALLOWED . THE ORDER IS PRON OUNCED IN THE OPEN COURT ON 0 4 . 0 9 .201 9 . S D / - S D / - [ SUCHITRA KAMBLE ] [ N.K. BILLAIYA ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 4 T H SEPTEMBER , 201 9 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER