M/s. Broadways Shoe Co., Srinagar (J&K) V. The Incomet-ax Officer, Srinagar

ITA 563/ASR/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7878 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-07-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 11-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHAGAT
• Keywords: Question of law; Non compliance; Assessment record; Block assessment; Reason to believe; Reassessment proceedings
• Section: 143(3); 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A NO.563(ASR)/2014 ASSESSMENT YEAR: 2005-06 M/S BROADWAY SHOE CO. HABBA KADAL, SRINAGAR (J&K) PAN:AAIFB-9906A VS. INCOME TAX OFFICER, WARD-3(1), SRINAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. M.R. BHAGAT RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 01.08.2017 DATE OF PRONOUNCEMENT: 11.08.20 17 ORDER PER T. S. KAPOOR: THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT(A), JAMMU, DATED 30.07.2014 FOR ASST. YEAR: 2005-06. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L. GROUND NO.1 IS GENERAL, GROUND NO.2 & 3 ARE LEGAL GROUNDS. IN GROU ND NO.2, THE ASSESSEE HAS CONTESTED THAT NO NOTICE U/S 148 WAS S ERVED TO THE ASSESSEE AS PROVIDED U/S 282 OF THE ACT AND THEREFO RE, THE ASSESSMENT ORDER AND APPELLATE ORDER TO BE CANCELLED. VIDE GROUND NO.3, THE ASSESSEE HAS CONTESTED THAT N O NOTICE U/S 143(2) OF THE ACT WAS ISSUED AND THEREFORE, ALSO TH E ASSESSMENT ORDER AND APPELLATE ORDER ARE LIABLE TO BE CANCELLED. ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 2 THE OTHER GROUNDS RELATE TO THE MERITS OF THE CASE , THE LD. AR CHOOSE TO ARGUE ONLY ON LEGAL GROUNDS. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT NO NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO (PB-22) WHERE A COPY OF THE NOTICE DATED 9 TH MARCH, 2012 ISSUED U/S 148 OF THE ACT WAS PLACED. THE LD. AR IN VITED OUR ATTENTION TO ONE NAME WRITTEN AS MD. SHAFI, WHO WAS ALLEGED TO H AVE RECEIVED THE NOTICE ON 12.03.2012. THE LD. AR SUBMITTED THAT MD. SAFI AS WRITTEN ON THE NOTICE U/S 148 IS NEITHER A PARTNER OF THE FIRM NOR AN EMPLOYEE OF THE FIRM AND THEREFORE, THE SERVICE OF NOTICE U/S 148 A S CLAIMED BY REVENUE IS NOT AS PER THE PROVISIONS OF SEC.282. IN THIS RE SPECT OUR ATTENTION WAS INVITED TO COPY OF PARTNERSHIP DEED PLACED AT (PB-1 1-13) AND OUR ATTENTION WAS INVITED TO THE NAMES OF PERSONS MENTI ONED IN THE PARTNERSHIP DEED AND IT WAS SUBMITTED THAT NONE OF PARTNERS NAME WAS MD. SAFI. IT WAS SUBMITTED THAT THE MD. SAFI WRITTE N ON THE NOTICE U/S 148 IS NOT AN AGENT OF THE ASSESSEE AND THEREFORE, THE SERVICE OF NOTICE IS NOT AS PER THE PROVISIONS OF SEC.282 OF THE ACT, AN D IN VIEW OF THIS INVALID SERVICE OF NOTICE U/S 148, IT WAS PRAYED TH AT THE ASSESSMENT ORDER AND APPELLATE ORDER MAY BE CANCELLED. RELIANC E IN THIS RESPECT WAS PLACED ON THE FOLLOWING CASE LAWS. (I) ITA NO.331(ASR)/2014, GURCHARAN SINGH, S/O S. D ALIP SINGH VS. ITO. (II) ITA NO.1891 TO 1893, CHETAN GUPTA VS. ACIT 201 2-144 ITR 344/34 TAXMAN.COM 306 (DELHI TRIB.) ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 3 4. WITHOUT PREJUDICE TO GROUND NO.1, IN RESPE CT OF GROUND NO.2 THE LD. AR SUBMITTED THAT NO NOTICE U/S 143(2) WAS ISSU ED TO THE ASSESSEE AND IN VIEW OF THE FACT THAT NO NOTICE U/S 143(2) W AS ISSUED, THE ASSESSMENT ORDER WAS LIABLE TO BE CANCELLED. TO PRO VE THAT NO NOTICE U/S 143(2) WAS ISSUED, THE LD. AR TOOK US TO LD. CIT(A) S ORDER WHEREIN ON THE ISSUE OF NOTICE U/S 143(2) THE LD. CIT(A) HAS H ELD THAT THE NOTICE U/S 143(2) WAS NOT REQUIRED TO BE GIVEN. THE LD. AR SUB MITTED THAT THE LAW RELATING TO ISSUE OF SERVICE OF NOTICE U/S 143(2) H AS FINALLY BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. HOTEL BLUE MOON 321 ITR 362 (SC) . THE LD. AR SUBMITTED THAT THE HONBLE SUPREME COU RT HAS CLEARLY HELD THAT ISSUE AND SERVICE OF NOTICE U/S 1 43(2) IS A STATUTORY REQUIREMENT & WITHOUT SERVICE OF SUCH NOTICE THE AS SESSMENT PROCEEDINGS ARE LIABLE TO BE CANCELLED. THE LD. AR PLACED HIS R ELIANCE ON VARIOUS CASE LAWS WHERE IT HAS BEEN HELD THAT NOTICE U/S 143(2) EVEN IN CASES WHERE ASSESSING OFFICER HAD REOPENED THE PROCEEDINGS U/S 148 OF THE ACT. (I) PRINCIPAL CIT VS. SHRI JAI SHIV SHANKAR TRADERS PVT . LTD. 323 ITR 249 (DELHI HIGH COURT. (II) INDUS TOWER LIMITED VS. DCIT, DELHI HIGH COURT (III) PR. CIT & ANORS VS. SILVER LINE & ANORS. 383 ITR 455(DEL.). (IV) ALPINCE ELECTRONICS ASIA PTE. LTD. VS. DIRE CTOR GENERAL OF INCOME TAX AND ORS. 341 ITR 247(DEL.) (V) ITA NO. 1809, 1504, 1505 & 1506(DEL)/2013 (VI) CIT VS. RAJEHSH SHARMA (ALLAHABAD HIGH COUR T) THE LD. AR SUBMITTED THAT IN ALL THESE CASE LAWS, I T HAS BEEN HELD THAT EVEN IN 148 PROCEEDINGS THE ISSUE OF NOTICE U/S 143 (2) IS MANDATORY. ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 4 5. THE LD. DR, ON THE OTHER HAND, SUBMITTED TH AT ASSESSEE HAD SOUGHT ADJOURNMENT IN RESPONSE TO NOTICE U/S 148 VI DE LATTER DATED 20.12.2012 AND IN THIS RESPECT OUR ATTENTION WAS IN VITED TO ASSESSMENT RECORDS AND OUR SPECIFIC ATTENTION WAS INVITED TO T HE COPY OF ADJOURNMENT APPLICATION DATED 20.12.2012 PLACED IN THE FILE. TH E LD. DR SUBMITTED THAT IN VIEW OF THE FACT THAT ASSESSEE HAD RESPONDE D TO THE NOTICE U/S 148 ITSELF PROOVES THAT ASSESSEE DID RECEIVE NOTICE AND IT WAS SUBMITTED THAT IN VIEW OF THE FACT THAT ASSESSEE HAD THE INFO RMATION OF NOTICE ISSUED U/S 148 PROVES THAT MD. SAFI WAS AN AUTHORIZED AGEN T OF THE ASSESSEE AND NOW THE ASSESSEE CANNOT CLAIM TO HAVE NOT BEEN SERVED THE NOTICE AS PER THE PROVISIONS OF SEC.282 OF THE ACT. IN VIEW O F THE ABOVE, THE LD. DR SUBMITTED THAT GROUND NO.2 TAKEN BY THE ASSESSEE IS MISPLACED AND THEREFORE, IS LIABLE TO BE DISMISSED. 6. ON GROUND NO.3, THE LD. DR SUBMITTED THAT THE RE QUIREMENT OF NOTICE U/S 143(2) IN THE CASE OF PROCEEDINGS U/S 14 8 IS NOT REQUIRED AS IS APPARENT FROM THE READING OF SEC. 148 ITSELF WHEREI N THE ASSESSING OFFICER HAS BEEN EMPOWERED TO RE-ASSESS THE INCOME OF THE A SSESSEE AND ASSESSING OFFICER ASSUMES POWER IN VIEW OF THE PROV ISIONS OF SEC.148. THE LD. DR SUBMITTED THAT IN THE FOLLOWING CASES, I T HAS BEEN HELD THAT IN 148 PROCEEDINGS, THE ISSUANCE OF NOTICE U/S 143(2) IS NOT REQUIRED. CIT VS. VISION INC, (DELHI HIGH COURT) ITA NO.1142 & 64 CIT, BATHINDA VS. M/S PANCHVATI MOTORS (PVT.) LTD. (P&H HIGH COURT) IN ITA NO.292. SEVAK RAM VS. ITO (P &H HIGH COURT) IN ITA NO. 690/ 2009 CIT VS. MADHYA BHARAT ENERGY CORPORATION (DELHI HIG H COURT) IN ITA NO.950 ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 5 IN VIEW OF THE ABOVE JUDGMENTS AND IN VIEW OF THE SPECIFIC PROVISIONS OF SEC.148, IT WAS SUBMITTED THAT THE GROUND TAKEN BY ASSESSEE BE DISMISSED. 7. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE CON TENTION OF LD. AR THAT NO VALID NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE, HAS NO FORCE AS ASSESSEE VIDE ADJOURNMENT APPLICATION DATED 20.12.2 012 HAD REPLIED TO THE NOTICE U/S 148 OF THE ACT AND HAD SUBMITTED CER TAIN DOCUMENTS ALSO AND THEREFORE, IT CANNOT BE SAID THAT THE NOTICE RE CEIVED BY ONE SH. MD. SAFI WAS NOT COMMUNICATED TO THE ASSESSEE. IF THE A SSESSEE HAD REPLIED TO THAT NOTICE THAT MEANS THAT MD. SAFI ACTED AS AN AG ENT OF THE ASSESSEE AND HANDED OVER THE NOTICE TO THE ASSESSEE AND I.E. , WHY THE ASSESSEE REPLIED TO THE NOTICE. IN VIEW OF THE ABOVE, GROUND NO.2 TAKEN BY ASSESSEE IS DISMISSED. NOW COMING TO GROUND NO.3 REGARDING NON SERVICE OF NOTICE U/S 143(2), WE FIND FROM THE COPY OF ORDER SHEET THAT O N 09.03.2012 NOTICE U/S 148 WAS SENT TO THE ASSESSEE TO WHICH THE ASSES SEE DID NOT COMPLY. AFTER RECORDING NON COMPLIANCE ON 11/04/2012 & 05/0 6/2012 THE ASSESSING OFFICER ON 17.12.2012 ISSUED NOTICE U/S 1 42(1) ALONG WITH DETAILED QUESTIONNAIRE AND THEN AGAIN ON 06.06.2013 NOTICE U/S 142(1) WAS SENT WHICH REMAINED UN-COMPLIED WITH. FROM THE COPY OF ORDER SHEET, WE DO NOT FIND THAT NOTICE U/S 143(2) AFTER INITIATION OF PROCEEDINGS U/S 148 WAS EVER ISSUED. FOR THE SAKE OF CONVENIENC E, THE COPY OF ORDER SHEET IS MADE PART OF THIS ORDER. ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 6 ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 7 ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 8 ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 9 NOW TO DECIDE AS TO WHETHER THE ISSUE OF NOTICE U/S 143(2) IN THE CASE OF PROCEEDINGS U/S 148 IS COMPULSORY OR NOT, W E HAVE TO GO THROUGH VARIOUS CASE LAWS AS RELIED ON BY LD. AR AN D LD. DR RESPECTIVELY. WE WOULD FIRST DEAL WITH THE JUDGMENTS RELIED ON BY LD. DR. SEWAK RAM VS. ITO (P&H HIGH COURT) IN THE PRESENT CASE, THE QUESTIONS DECIDED BY HONB LE PUNJAB & HARYANA HIGH COURT READS AS UNDER: (I) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE AO HAD A NY REASON TO INITIATE PROCEEDINGS UNDER S. 147 OF THE IT ACT, 1961 ? (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE FINDING OF THE LEARNED TRIBUNAL IS PERVERSE IN NATURE TO THE EXTEN T THAT THE ASSESSEE DID NOT FILE THE BALANCE SHEET, TRADING, P&L A/C AND CA PITAL ACCOUNT WITH THE ORIGINAL RETURNS FILED FOR ASST. YEAR 2000-01 ? FROM THE QUESTIONS FRAMED ABOVE, WE DO NOT FIND THA T THIS JUDGMENT DEALS ISSUE WITH RESPECT TO ISSUE OF NOTIC E U/S 143(2) OF THE ACT, AND IT DEALS ONLY WITH THE REOPENING OF ASSESS MENT, THEREFORE, THIS CASE LAW IS NOT APPLICABLE AT ALL TO THE FACTS AND CIRCUMSTANCES OF THE CASE. CIT, BATHINDA VS. M/S PANCHWATI MOTORS PVT. LTD., THE QUESTIONS FRAMED BY THE HONBLE COURT IN THIS C ASE ARE AS UNDER: ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 10 (I) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE HONBLE ITAT WAS RIGHT IN LAW TO HOLD THAT THE SERVICE OF NOTICE U/S 148 WAS INVALID AND, THEREFORE, IT WAS NOT CORRECT IN QUASHING THE ASSES SMENT ORDERS ON THE SAID GROUNDS.? WHILE GOING THROUGH THE ORDER OF THE HONBLE COURT, WE FIND THAT HONBLE COURT HAS NOT DISCUSSED ANY ISSUE RELATING TO ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AND RATHER HAS DECIDED THE IS SUE WITH RESPECT TO VALIDITY OF THE ISSUANCE OF NOTICE U/S 148 OF THE A CT, THEREFORE, THIS CASE LAW IS ALSO NOT APPLICABLE. CIT VS. VISION INK. THIS CASE HAS BEEN DECIDED BY HONBLE DELHI HIGH CO URT AND THE ISSUE IN THIS APPEAL WAS SERVICE OF NOTICE U/S 143( 2) OF THE ACT. IN THIS CASE THE ASSESSEE HAD ARGUED THAT THE NOTICE U/S 14 3(2) WAS NOT SERVED PROPERLY. THIS FACT BECOMES APPARENT FROM PARA-6 OF THIS ORDER. 6. THE ASSESSEE APPEALED AGAINST THE ASSESSMENT ORDER BEFORE THE CIT (APPEALS) AND CONTESTED BOTH THE VALIDITY OF THE AS SESSMENT ORDER AND THE ADDITIONS MADE THEREIN ON MERITS. AS REGARDS THE VA LIDITY OF THE ASSESSMENT ORDER, THE CONTENTION OF THE ASSESSEE WAS THAT NO V ALID NOTICE UNDER SECTION 143(2) HAD BEEN SERVED UPON IT AND THEREFORE THE AS SESSMENT ORDER WAS INVALID. IT WOULD APPEAR THAT THE ASSESSEE HAD FILE D WRITTEN ARGUMENTS BEFORE THE CIT (APPEALS) IN WHICH THIS POINT HAD BEEN ALSO INCLUDED. THE WRITTEN ARGUMENTS WERE SENT BY THE CIT (APPEALS) TO THE ASS ESSING OFFICER AND A REMAND REPORT WAS CALLED FOR FROM HIM. IN THE REMAN D REPORT DATED 11.01.2007 THE ASSESSING OFFICER POINTED OUT THAT T HE FIRST NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT ON 27.12.2004 WAS SENT TO THE ASSESSEE THROUGH THE INSPECTOR AT THE ADDRESS GIVEN IN THE RETURN OF INC OME, NAMELY, E/18, KALKAJI, NEW DELHI. UNDER THIS NOTICE THE HEARING WAS FIXED ON'31.12.2004. ACCORDING TO THE ASSESSING OFFICER THIS NOTICE COULD NOT BE S ERVED BECAUSE NO SUCH FIRM EXISTED AT THE GIVEN ADDRESS AS PER THE INSPECTOR. ANOTHER NOTICE DATED 28.12.2004 WAS SENT THROUGH SPEED POST TO THE SAME ADDRESS WHICH ALSO CAME BACK UNSERVED WITH THE POSTAL COMMENT THAT 'NO SUCH FIRM EXISTED IN THE GIVEN ADDRESS'. A THIRD NOTICE WAS THEREAFTER SENT ON 30.12.2004 THROUGH THE INCOME TAX INSPECTOR AT A DIFFERENT ADDRESS NAMELY K-16, KALKAJI, NEW DELHI, ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 11 FIXING THE CASE FOR HEARING ON 05.01.2005. THIS NOT ICE, ACCORDING TO THE REMAND REPORT SENT BY THE ASSESSING OFFICER, WAS SE RVED UPON THE PERSON PRESENT AT THE ADDRESS, SINCE THE PARTNER MANOJ GUP TA WAS OUT OF STATION. IT IS NOT CLEAR WHETHER HIS WIFE SHALLU GUPTA WHO WAS THE OTHER PARTNER IN THE FIRM WAS ALSO OUT OF STATION AS IT APPEARS TO HAVE BEEN CONTENDED BEFORE THE TRIBUNAL ON BEHALF OF THE ASSESSEE. THE TRIBUNAL, I N PARA 4 OF ITS ORDER HAS REFERRED TO THE REMAND REPORT OF THE ASSESSING OFFI CER AS ONLY TO MANOJ GUPTA BEING OUT OF STATION. THE TRIBUNAL HAS ALSO RECORDE D A FINDING THAT IN REMAND REPORT THERE IS NO MENTION ABOUT THE OTHER PARTNER SHALLU GUPTA. THE INFERENCE OF TRIBUNAL IS THAT HAD THE NOTICE BEEN SERVED ON S HALLU GUOTA. IT WAS EXPECTED OF THE ASSES: OFFICER TO HAVE SAID SO IN T HE REMAND REPORT. WE FELT COMPELLED TO DIGRESS A LITTLE FROM NARRATION OF THE PROCEEDINGS BEFORE THE CIT (APPEALS) BECAUSE THE CONTENTION OF THE ASSES THROU GHOUT, INCLUDING THE HEARING BEFORE US, WAS THAT THERE WAS NO EVIDENCE T O SHOW AS UPON WHOM THE NOTICE WAS SERVED. IN FACT ONE OF THE CONTENTIONS R AISED BEFORE US ON BEHALF THE ASSESSEE WAS THAT THE NOTICE WAS SERVED ON AN UNKNO WN PERSON. FROM THE ABOVE JUDGMENT, WE FIND THAT ISSUE IN THIS CASE WAS NOT ISSUE OF NOTICE U/S 143(2) OF THE ACT BUT WAS OF IM PROPER SERVICE OF NOTICE U/S 143(2) OF THE ACT, WHEREAS IN THE PRESENT CASE, THE ISSUE IS RELATING TO NON ISSUE OF NOTICE U/S 143(2) OF THE ACT AND IN TH E PRESENT CASE ASSESSEE DID NOT PARTICIPATE IN THE ASSESSMENT PROC EEDINGS AND ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT AND PRO VISIONS OF SEC.292BB WERE ALSO NOT APPLICABLE AS THE PROVISION S OF SEC. 292BB ARE APPLICABLE W.E.F 2008-09. THE HONBLE DELHI HIGH CO URT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. JAI SHIV S HANKAR TRADERS PVT. LTD. VIDE ITS ORDER DATED 14.10.2015 HAS DISCUSSED THIS CASE LAW IN PARA 10 AND HAS DISTINGUISHED IT AS UNDER: 10. MS AGGARWAL NEVERTHELESS URGED THAT NOTWITHS TANDING THE ABOVE POSITION, THE DECISION OF THIS COURT IN CIT V. VISION INC. (2012) 73 DTR 201 (DEL) WOULD APPLY. THE SAID JUDGMENT HELD THAT SINCE ON THE FACTS OF THAT CASE THE ASSESSEE HAD BEEN PROPERLY SERVED WITH THE NOTI CE UNDER SECTION 143(2) OF THE ACT WITHIN THE STATUTORY TIME LIMIT PRESCRIBED UNDER THE PROVISO THERETO, THE ITAT SHOULD NOT HAVE SET ASIDE THE RE-ASSESSMENT IN TOTO. MS AGGARWAL PLACED RELIANCE ON SECTION 292BB OF THE ACT AND URGED THAT THE ASSESSEE HAVING NOT RAISED ANY OBJECTION ABOUT NON SERVICE OF THE NOTIC E UNDER SECTION 143(2) OF THE ACT EITHER AT ANY TIME BEFORE THE AO OR PRIOR T O, OR DURING THE REASSESSMENT PROCEEDINGS, THE ASSESSEE WAS PRECLUDED FROM RAISIN G SUCH AN OBJECTION IN THE SUBSEQUENT OF THE PROCEEDINGS. ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 12 THEREFORE, FROM THE ABOVE, IT IS AMPLY CLEAR THAT T HIS JUDGMENT IS ALSO NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF TH E PRESENT CASE. CIT VS. MADHYA BHARAT ENERGY CORPORATION LTD. IN THIS CASE ISSUE OF NOTICE U/S 143(2) IN VIEW OF THIS PROVISIONS OF SEC.148 HAS BEEN DECIDED AGAINST THE ASSESSEE. HOWE VER, THIS DECISION HAS BEEN REVIEWED BY THE HONBLE DELHI HIGH COURT I N REVENUE PETITION NO.441/2011 VIDE ORDER DATED 17 TH AUGUST, 2011. THIS FACT HAS BEEN NOTED BY THE HONBLE HIGH COURT IN THE CASE OF PR. CIT VS. SRI JAI SHIV SHANKAR TRADER PVT. LTD. AT PARA -9 WHICH READS AS UNDER. 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 17 TH AUGUST, 2011 IN REVIEW PETITION NO.441/2011 IN ITA NO.950/2008 (CUT V. MADHYA BHARAT ENERGY CORPORATION) WHEREBY T HIS COURT REVIEWED ITS MAIN JUDGMENT IN THE MATTER RENDERED ON 11 TH JULY 2011 ON THE GROUND THAT THE SAID APPEAL HAD NOT BEEN ADMITTED ON THE Q UESTION CONCERNING THE MANDATORY COMPLIANCE WITH THE REQUIREMENT OF ISSUAN CE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN ITS REVIEW ORDER, THI S COURT NOTED THAT AT THE TIME OF ADMISSION OF THE APPEAL ON 17 TH FEBRUARY, 2011 AFTER NOTICING THAT IN THE SAID CASE THAT NO NOTICE UNDER SECTION 143(2 ) HAD EVER BEEN ISSUED, THE COURT HELD THAT NO QUESTION OF LAW AROSE ON THA T ASPECT. THE UPSHOT OF THE ABOVE DISCUSSION IS THAT THE DECISION OF THIS C OURT 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. THEREFORE, THIS JUDGMENT IS ALSO NOT RELEVANT AND T HEREFORE, IN VIEW OF THE FACTS DISCUSSED ON THE JUDGMENTS RELIED ON B Y THE LD. DR, THESE ARE DISTINGUISHABLE ON THE FACTS. NOW COMING TO THE JUDGMENTS RELIED ON BY LD. AR. CIT VS. SHRI JAI SHIV SHANKAR PVT. LTD (DELHI H IGH COURT) ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 13 IN THIS CASE, THE HONBLE HIGH COURT HAS CONSIDERE D THE JUDGMENT OF CIT(A) VS. MADHAYA BHARAT ENERGY CORPORATION LTD .(SUPRA) AND ALSO THE DECISION IN THE CASE OF CIT VS. VISION INK (SUP RA) AND AFTER GOING THROUGH THESE JUDGMENTS THE HONBLE HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE WHEREIN IT HAS DECIDED THAT E VEN IN THE CASES COVERED U/S 148 THE ISSUANCE OF NOTICE U/S 143(2) I S A MANDATORY REQUIREMENT. THE HONBLE COURT HAS FURTHER RELIED O N VARIOUS CASE LAWS WHICH HAS BEEN RELIED UPON BY LD. AR ALSO. THE RELE VANT PART OF THE ORDER PASSED BY THE HONBLE DELHI HIGH COURT IS REPRODUCE D HEREIN BELOW. 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 17 TH AUGUST, 2011 IN REVIEW PETITION NO.441/2011 IN ITA NO.950/2008 (CUT V. MADHYA BHARAT ENERGY CORPORATION) WHEREBY T HIS COURT REVIEWED ITS MAIN JUDGMENT IN THE MATTER RENDERED ON 11 TH JULY 2011 ON THE GROUND THAT THE SAID APPEAL HAD NOT BEEN ADMITTED ON THE Q UESTION CONCERNING THE MANDATORY COMPLIANCE WITH THE REQUIREMENT OF ISSUAN CE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN ITS REVIEW ORDER, THI S COURT NOTED THAT AT THE TIME OF ADMISSION OF THE APPEAL ON 17 TH FEBRUARY, 2011 AFTER NOTICING THAT IN THE SAID CASE THAT NO NOTICE UNDER SECTION 143(2 ) HAD EVER BEEN ISSUED, THE COURT HELD THAT NO QUESTION OF LAW AROSE ON THA T ASPECT. THE UPSHOT OF THE ABOVE DISCUSSION IS THAT THE DECISION OF THIS C OURT 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. 10. MS AGGARWAL NEVERTHELESS URGED THAT NOTWITHSTAN DING THE ABOVE POSITION, THE DECISION OF THIS COURT IN CIT V. VISION INC. (2012) 73 DTR 201 (DEL) WOULD APPLY. THE SAID JUDGMENT HELD THAT SINCE ON THE FACTS OF THAT CASE THE ASSESSEE HAD BEEN PROPERLY SERVED WIT H THE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE STATUTORY TIME LIMIT PRESCRIBED UNDER THE PROVISO THERETO, THE ITAT SHOULD NOT HAVE SET A SIDE THE RE-ASSESSMENT IN TOTO. MS AGGARWAL PLACED RELIANCE ON SECTION 292 BB OF THE ACT AND URGED THAT THE ASSESSEE HAVING NOT RAISED ANY OBJEC TION ABOUT NON SERVICE OF THE NOTICE UNDER SECTION 143(2) OF THE ACT EITHE R AT ANY TIME BEFORE THE AO OR PRIOR TO, OR DURING THE REASSESSMENT PROCEEDI NGS, THE ASSESSEE WAS PRECLUDED FROM RAISING SUCH AN OBJECTION IN THE SUB SEQUENT OF THE PROCEEDINGS. 11. DR RAKESH GUPTA FOR THE ASSESSEE ON THE OTHER H AND PLACED RELIANCE ON A LARGE NUMBER OF DECISIONS OF THE HIGH COURTS A PART FROM THE DECISION OF THE SUPREME COURT IN ACIT V. HOTEL BLUE MOON (SUPRA). HE SUBMITTED THAT THE FAILURE TO ISSUE A NOTICE UNDER SECTION 14 3(2) OF THE ACT SUBSEQUENT ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 14 TO THE ASSESSEE HAVING INFORMED THE AO THAT THE RET URN ORIGINALLY FILED SHOULD BE TREATED AS THE RETURN FILED PURSUANT TO T HE NOTICE UNDER SECTION 148 OF THE ACT, WAS FATAL TO THE ORDER OF RE-ASSESS MENT. 12.THE NARRATION OF FACTS AS NOTED ABOVE BY THE COU RT MAKES IT CLEAR THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUE D TO THE ASSESSEE AFTER 16 TH DECEMBER 2010, THE DATE ON WHICH THE ASSESSEE INFO RMED THE AO THAT THE RETURN ORIGINALLY FILED SHOULD BE TREATED AS TH E RETURN FILED PURSUANT TO THE NOTICE UNDER SECTION 148 OF THE ACT. 13.IN DIT V. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATIONS (2010) 323 ITR 249 (DEL), THIS COURT INVALIDATED AN REASSESSMENT PROCEEDINGS AFTER NOTING THAT THE N OTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED TO THE ASSESSEE PU RSUANT TO THE FILING 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 FIL ED BY THE ASSESSEE IS ACTUALLY SCRUTINIZED BY THE AO. 14. THE INTERPLAY OF SECTIONS 143 (2) AND 148 OF TH E ACT FORMED THE SUBJECT MATTER OF AT LEAST TWO DECISIONS OF THE ALLAHABAD H IGH COURT. IN CIT V. RAJEEV SIT ANNA (2011) 336ITR 678 (ALL.) IT WAS HELD THAT A PLAIN READING OF SECTION 148 OF THE ACT REVEALS THAT WITH IN 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 SEC TION 143 IS MANDATORY AND THE LEGISLATURE IN THEIR WISDOM BY US ING THE WORD 'REASON TO BELIEVE' HAD CAST A DUTY ON THE ASSESSIN G OFFICER TO APPLY MIND TO THE MATERIAL ON RECORD AND AFTER BEING SATI SFIED WITH REGARD TO ESCAPED LIABILITY, SHALL SERVE NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM. IN VIEW OF THE ABOVE, AFTER RECEIPT OF RETUR N 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 ASSIGNI NG 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 PRO CEDURE ADOPTED FOR ESCAPED ASSESSMENT, SHALL NOT BE VALID. 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 REASSESSME NT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER THE PROVISIONS OF THE ACT, WHICH IS REQUIRED TO BE SERVED ON THE ASSESSEE, HAS BEEN DUL Y SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF TH E 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 SERVED UPON HIM IN TIME; OR (III) SERVED UPON HIM I N AN IMPROPER MANNER. IN OTHER WORDS, ONCE THE DEEMING FICTION CO MES INTO OPERATION, THE ASSESSEE IS PRECLUDED FROM RAISING A CHALLENGE ABOUT ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 15 THE SERVICE OF A NOTICE, SERVICE WITHIN TIME OR SER VICE IN AN IMPROPER MANNER. THE PROVISO TO SECTION 292 BB OF THE ACT, H OWEVER, CARVES OUT AN EXCEPTION TO THE EFFECT THAT THE SECTION SHA LL NOT APPLY WHERE THE ASSESSEE HAS RAISED AN OBJECTION BEFORE THE COM PLETION OF THE ASSESSMENT OR REASSESSMENT. SECTION 292 BB OF THE A CT CANNOT OBVIATE THE REQUIREMENT OF COMPLYING WITH A JURISDI CTIONAL CONDITION. FOR THE ASSESSING OFFICER TO MAKE AN ORDER OF ASSES SMENT UNDER SECTION 143 (3) OF THE ACT, IT IS NECESSARY TO ISSU E 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 JURIS DICTION ITSELF WOULD BE INVALID. A) IN THE SAME DECISION IN V. SALARPUR COLD STORAGE (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 REQUIRE MENT TO ISSUE NOTICE UNDER SECTION 143(2) WAS MANDATORY. IT WAS NOT 'A P ROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQ UIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. 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 AC T WAS ISSUED TO THE ASSESSEE SEEKING TO REOPEN THE ASSESSMENT FOR A Y 2000-01. HOWEVER, THE ASSESSEE DID NOT FILE A RETURN AND THE REFORE A NOTICE WAS ISSUED TO IT UNDER SECTION 142 (1) OF THE ACT. PURSUANT THERETO, THE ASSESSEE APPEARED BEFORE THE AO AND STATED 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, THE AO FOUND THAT THERE WERE PROBLEMS W ITH THE RETURN WHICH REQUIRED EXPLANATION BY THE ASSESSEE THEN THE AO OUGHT 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 M EAN 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 PROCESSI NG OF THE REASSESSMENT PROCEEDINGS. THE FACT THAT ON THE NOTI CE ISSUED U/S 143(2) OF THE ACT, THE ASSESSEE HAD PLACED ITS OBJECTION AND REITERATED ITS EARLIER RETURN FILED AS ONE FILE D IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT AND THE OFF ICER HAD ALSO NOTED THAT THE SAME WOULD BE CONSIDERED FOR CO MPLETING OF ASSESSMENT, WOULD SHOW THAT THE AO HAS THE DUTY OF ISSUING THE NOTICE UNDER SECTION 143(3) TO LEAD ON TO THE PASSING OF THE ASSESSMENT. IN THE CIRCUMSTANCES, WI TH NO NOTICE ISSUED U/S 143(3) AND THERE BEING NO WAIVER, THERE IS NO JUSTIFIABLE GROUND TO ACCEPT THE VIEW OF THE TRI BUNAL THAT THERE WAS A WAIVER OF RIGHT OF NOTICE TO BE ISSUED U/S 143(2) OFTHE ACT. 18. AS ALREADY NOTICED, THE DECISION OF THIS COURT IN CIT V. VISION INC. PROCEEDED ON A DIFFERENT SET OF FACTS. IN THAT CASE , THERE WAS A CLEAR FINDING OF THE COURT THAT SERVICE OF THE NOTI CE HAD BEEN EFFECTED ON THE ASSESSEE UNDER SECTION 143 (2) OF THE ACT. A S ALREADY ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 16 FURTHER NOTICED, THE LEGAL POSITION REGARDING SECTI ON 292BB HAS ALREADY BEEN MADE EXPLICIT IN THE AFOREMENTIONED DE CISIONS OF THE ALLAHABAD HIGH COURT. THAT PROVISION WOULD APPLY IN SOFAR AS FAILURE OF SERVICE OF NOTICE WAS CONCERNED AND NOT WITH R EGARD TO FAILURE TO ISSUE NOTICE. IN OTHER WORDS, THE FAILURE OF T HE AO, IN RE- ASSESSMENT PROCEEDINGS, TO ISSUE NOTICE UNDER SECTI ON 143(2) OF THE ACT, PRIOR TO FINALISING THE RE-ASSESSMENT ORDER, C ANNOT BE CONDONED BY REFERRING TO SECTION 292BB OF THE ACT. 19. THE RESULTANT POSITION IS THAT AS FAR AS THE PR ESENT CASE IS CONCERNED THEFAILURE BY THE AO TO ISSUE A NOTICE TO THE ASSESSEE UNDER SECTION 143(2) OF THE ACT SUBSEQUENT TO 16 TH DECEMBER 2010 WHEN THE ASSESSEE MADE A STATEMENT BEFORE THE AO TO THE EFFECT THAT THE 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. WE FURTHER FIND THAT THE HONBLE DELHI HIGH COURT IN RECENT CASE OF INDUS TOWER LIMITED VS. CIT, VIDE ITS JUDGMENT DATE D 29.05.2017 HAS ALSO CONSIDERED SIMILAR ISSUE BY FOLLOWING THE JUDG MENT OF HOTEL BLUE MOON 321 ITR 366 (SC) AND CIT VS. JAI SHREE SHIV SH ANKAR AND HAS AGAIN DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE B Y HOLDING AS UNDER: 13. IN RESPONSE TO THE ABOVE SUBMISSIONS, MR. DILE EP SHIVPURI, LEARNED SENIOR STANDING COUNSEL FOR THE DEPARTMENT, SUBMITT ED THAT AS FAR AS SECOND SUBMISSION IS CONCERNED, THE FACTS SPEAK FOR THEMSELVES. HE HAD NOTHING FURTHER TO ADD BECAUSE THERE WAS NO EXPLANA TION FOR THE FAILURE TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT PURSUA NT TO THE NOTICE UNDER SECTION 148 OF THE ACT BEFORE 30 SEPTEMBER 2013, TH E LAST DATE BY WHICH THE NOTICE OUGHT TO HAVE BEEN ISSUED. 14..THE LAW ON THIS POINT IS FAIRLY WELL SETTLED I N THE DECISIONS IN ACIT V. HOTEL BLUE MOON 12010] 321 ITR 362 (SC) REITERATED IN CIT V. MADHYA BHARAT ENERGY CORPORATION [2011] 337 ITR 389 (DEL) AND PRINCIPAL COMMISSIONER OF INCOME TAX V. JAI SHIV SHANKAR TRAD ERS (P.) LTD. [2016]383 ITR 448 (DEL). IN THE LAST MENTIONED JUDGMENT, THIS COURT HELD THAT THE DELAY IN ISSUING A NOTICE UNDER SECTION 14 3(2) OF THE ACT WOULD BE FATAL TO THE RE-ASSESSMENT PROCEEDINGS. 15. FOR THE AFOREMENTIONED REASONS, IT IS HELD THAT AS FAR AS THE SECOND GROUND IS CONCERNED, THE PETITIONER SHOULD SUCCEED. IN THAT VIEW OF THE MATTER, THE COURT DOES NOT CONSIDER IT NECESSARY TO EXAMINE THE FIRST GROUND OF CHALLENGE. ITA NO.56 3(ASR)/2014 ASST. YEAR: 2005-06 17 16..THE IMPUGNED NOTICE DATED 22 FEBRUARY, 2013 ISS UED TO THE PETITIONER UNDER SECTION 148 OF THE ACT AS WELL AS THE CONSEQU ENTIAL ORDER DATED 20 TH JANUARY, 2014 DISPOSING OF ITS OBJECTIONS AS WELL A S THE REASSESSMENT PROCEEDINGS PURSUANT THERETO ARE HEREBY QUASHED. SIMILAR FINDINGS HAS BEEN MADE BY VARIOUS COURTS IN THE DECISION RELIED ON BY THE LD. AR. IT IS AN UNDISPUTED FACT T HAT IN THE PRESENT CASE NO NOTICE U/S 143(2) WAS ISSUED WHICH WE HAVE EXAMI NED FROM THE ASSESSMENT RECORD ALSO AND WHICH IS APPARENT FROM T HE LD. CIT(A)S ORDER WHEREIN HE HAS HELD THAT ISSUE OF NOTICE U/S 143(2) WAS NOT REQUIRED IN THIS CASE. IN VIEW OF THE ABOVE JUDICIAL PRECEDENTS, WE ALLOW GROUND NO.3 OF THE APPEAL AND QUASH THE ASSESSMENT ORDER AND APPEL LATE ORDER PASSED BY LD. CIT(A). 8. IN NUTSHELL, THE APPEAL FILED BY ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.08.2017 . SD/- SD/- (N.K.CHOUDHRY ) (T. S. KAP OOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:11.08.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER