ITO, New Delhi V. Smt. Kushal Timber (P) Ltd, Delhi

ITA 578/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97591 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 14-10-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 05-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Reason to believe
• Section: 143(3); 147; 69; 148; 10; 11

Judgement Text

1 ITA NO. 578/DEL/10 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI N. K. SAINI, ACCOUNTANT MEMBER AND SMT BEENA PILLAI, J UDICIAL MEMBER I.T.A .NO.5 78/DEL/2010 (ASSESSMENT YEA R-2004-05) ITO WARD 5(3), ROOM NO. 409A C.R. BUILDING NEW DELHI (APPELLANT) VS KUSHAL TIMBER (P) LTD. PLOT NO. 1, MAIN ROHTAK ROAD, OPP. TEMPO STAND SWARAN PARK, MUNDKA, NANGLOI DELHI AACCK1310N (RESPONDENT) APPELLANT BY SH. S. K. JAIN, SR. DR RESPONDENT BY SH. VED JAIN, CA ORDER PER BEENA PILLAI, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE, A GAINST THE ORDER DATED 30/11/2009, PASSED BY THE LD. CIT(A) VI II, NEW DELHI FOR ASSESSMENT YEAR 2004-05, ON THE FOLLOWING GROUNDS: - 1. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND CO NTRARY TO THE FACTS AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN ANNULLING THE ASSESSMEN T ORDER DATE OF HEARING 21.10.2015 DATE OF PRONOUNCEMENT 21 .10.2015 2 ITA NO. 578/DEL/10 PASSED BY THE A.O U/S 147/143(3) OF THE I.T ACT, WI THOUT GOING INTO THE MERITS OF THE CASE. 2.1 LD. CIT(APPEALS) IGNORED THE FINDINGS RECORDED BY THE A.O AND THE FACT THAT THE ASSESSEE IS NOT RAISED ANY OBJECT ION REGARDING THE VALIDITY OF SATISFACTION RECORDED BY THE A.O DURING ASSESSMENT PROCEEDINGS AS NEEDED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 292 BB OF THE I.T ACT. 2. BRIEF FACTS OF THE CASE AS RECORDED BY THE LD. C IT(A) ARE AS UNDER:- 3. THE ASSESSEE FILED ITS RETURN OF INCOME ON 30/4/ 2004 DECLARING TOTAL INCOME OF RS.1,86,100/- ON THE BASIS OF INFOR MATION RECEIVED FROM THE DIT INVESTIGATION. THE LD. ASSESSING OFFICER, BEING ITO WARD-3, GURGAON ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT ON 11/3/2008. 4. THE ASSESSEE COMPANY WAS INCORPORATED ON 20/6/20 03HAVING PRINCIPLE PLACE OF BUSINESS AT NEW DELHI, AND F.Y 2 003-04 WAS THE FIRST YEAR OF ITS OPERATION. THE NOTICE U/S 148 DATED 11 /3/2008 WAS ISSUED BY THE ITO WARD-3, GURGAON WITHOUT PROVIDING ANY RE ASONS FOR REOPENING THE REASONS RECORDED BY THE ITO WARD-3, G URGAON FOR ISSUE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT. IT WAS INTIMATED BY THE ASSESSEE ON RECEIPT OF THE NOTICE U/S 148 THAT, THE JURISDICTION IN THE CASE OF THE ASSESSEE FOR THE RELEVANT ASSESSMEN T YEAR WAS DELHI. SUBSEQUENTLY, THE A O TRANSFERS THE CASE TO DELHI. NOTICE U 143(2) DATED 3/7/2008, NOTICE UNDER 143(3) DATED 12/11/200 8 WAS ISSUED BY ITO WARD-5(3), NEW DELHI AND ALSO PROVIDED WITH THE REASONS RECORDED FOR REOPENING THE ASSESSMENT ON 08.12.2008. THE JUR ISDICTIONAL A.O PROCEEDED TO COMPLETE THE ASSESSMENT U/S 147 READ W ITH 143(3) OF THE INCOME TAX ACT VIDE HIS ORDER DATED 30/12/2008. IN THE ASSESSMENT 3 ITA NO. 578/DEL/10 PROCEEDINGS, THE LD. A.O ALSO MADE CERTAIN ADDITION S U/S 69 OF THE INCOME TAX ACT AMOUNTING TO RS.90 LACS. 5. AGGRIEVED BY THE ORDER OF THE LD. A.O, THE ASSES SEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) VIII, ON TWO GROUNDS B EING THE LEGALITY AND THE JURISDICTION OF ISSUANCE OF ONE NOTICE U/S 148 BY THE A.O AT GURGAON, AND, THE ADDITION MADE BY THE JURISDICTION AL A.O AT THE TIME OF ASSESSMENT PROCEEDINGS. THE LD. CIT(A) DEALT WI TH THE LEGAL ISSUES RELATING TO THE JURISDICTION OF ITO WARD-3, GURGAON TO ISSUE NOTICE U/S.148 OF THE ACT,. ON GOING THROUGH THE SUBMISSIO NS AND JUDGMENTS RELIED UPON BY THE ASSESSEE, THE LD.CIT(A) HELD THA T THE NOTICE U/S 148, ISSUED BY THE ITO WARD-3, GURGAON WAS WITHOUT JURIS DICTION. THE LD. CIT(A), QUASHED THE ASSESSMENT PROCEEDINGS AND HELD THE SUBSEQUENT ACTIONS INCLUDING ISSUANCE OF SECTION 143(2) AND PA SSING OF THE ORDER U/S 147 READ WITH 143 (3) AS VOID AB INITIO. THE LD. CIT(A) HELD THAT SECTION 292 BB OF THE ACT CANNOT BE APPLIED TO THE FACTS OF THE ASSESSEES CASE ON TWO GROUNDS. FIRSTLY, THE PROVISION OF SECTION 292 BB HAVE BEEN APPLIED W.E.F 1/4/2008, AND NOT RETROSPECTIVELY, AS HELD BY HONB LE SPECIAL BENCH OF ITAT, DELHI IN THE CASE OF CUBER TOBACCO P RODUCTS PVT. LTD VS. DSCIT REPORTED IN 117 ITD 273. SECONDLY, THE LD. CIT(A) HELD THAT, THE ASSESSEES CASE IS NOT A QUESTION OF ISSUE OF NOTICE U/S 148 WITHOUT ANY JUR ISDICTION; RATHER THE MAIN QUESTION IS TO DECIDE WHETHER THE A .O COULD HAVE EXERCISED CORRECT JURISDICTION AND FORM REQUISITE BELIEF/SATISFACTION TO EXAMINE WHETHER THE ASSESSIN G OFFICER 4 ITA NO. 578/DEL/10 IRRESPECTIVE OF JURISDICTION IS COMPETENT TO RECORD SATISFACTION AS TO THE ESCARPMENT OF INCOME IN TERMS OF SECTION 147 AND COMPLETE THE ASSESSMENT ON THE BASIS OF A CONSENT GIVEN BY T HE ASSESSEE COMPANY. 6. THE LD. CIT(A) IN PARA 3.6 OBSERS AS UNDER:- 3.6 THERE IS ONE MORE ASPECT WHICH MERITS DISCUSSI ON AT THIS STAGE. A STATED EARLIER, EVEN BEFORE RECEIVING ASS ESSEES REPLY ON 5/12/2008 WHEREIN, AS PER THE A.O, THE APPELLANT COMPANY HAD GIVEN ITS NO OBJECTION FOR CONTINUING T HE ASSESSMENT PROCEEDINGS, THE ITO WARD-5 (3), NEW DEL HI, HAD ISSUED A NOTICE U/S 143(2) ON 3/7/2008. NOW THE QU ESTION IS WHETHER THE ITO 5(3) WAS COMPETENT TO ISSUE SUCH NO TICE U/S 143(2) WITHOUT OBTAINING RETURN EVEN IN RESPONSE TO THE NOTICE U/S 148 OF THE IT ACT ISSUED BY THE ITO, WARD-3 GUR GAON. I HAVE ALREADY NARRATED ABOVE THAT THE FIRST RESPONSE FROM THE ASSESSEES SIDE AFTER THE ISSUE OF NOTICE U/S 148 B Y THE ITO, GURGAON, WAS BY WAY OF ITS LETTER DATED 5/12/2008. IN THESE CIRCUMSTANCES, I FAIL TO UNDERSTAND AS TO HOW THE L D. A.O COULD ISSUE A NOTICE U/S 143(2) WITHOUT THERE BEING A RETURN FILED IN RESPONSE TO NOTICE U/S 148 OR EVEN WITHOUT GETTING RETURN OF INCOME FILED SUO MOTO ON 30/4/2004, REGUL ARIZED. 7. THE LD. CIT(A), THEREFORE, ANNULLED THE ASSESSME NT MADE IN TERMS OF 147 READ WITH 143(3) OF THE ACT. 8. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 9. THE LD. DR SUPPORTS THE ORDERS OF THE LD.CIT(A) A.O. HE SUBMITTED THAT THE NOTICE ISSUED U/S 148 BY THE ITO WARD-3, GURGAON WAS RECEIVED BY THE ASSESSEE, AND THEREAFTER, THE A SSESSMENT HAS BEEN TRANSFERRED TO THE JURISDICTIONAL ITO AT DELHI. TH E ASSESSEE HAS NOT 5 ITA NO. 578/DEL/10 OBJECTED TO THE ACTION OF THE A.O AND HAS HIMSELF O PTED FOR CONTINUATION OF THE RE-ASSESSMENT PROCEEDINGS. 10. THE DR SUBMITTED THAT SECTION 292 BB PRECLUDE S UCH CASES WHERE THE ASSESSEE HAS NO OBJECTION TO THE CONTINUA TION OF ASSESSMENT OF RE-ASSESSMENT PROCEEDINGS. 11. WE HAVE PERUSED THE RECORDS PRODUCED BEFORE US, THE ORDERS PASSED BY THE AUTHORITIES BELOW, THE SUBMISSIONS MA DE BY BOTH THE PARTIES AND THE JUDGMENTS RELIED UPON BY THEM. 12. THE UNDISPUTED POSITION IN THE PRESENT CASE IS THAT, WHILE THE RETURN OF INCOME WAS FILED BY THE APPELLANT COMPANY WITH THE JURISDICTION OF DCIT CIRCLE-5(1), NEW DELHI, THE NO TICE U/S. 148 READ WITH SECTION 147 OF THE ACT WAS ISSUED BY THE ITO W ARD-3, GURGAON ON 13/3/2008. FURTHER, THE ASSESSMENT HAS BEEN COMPLET ED BY YET ANOTHER OFFICER, BEING ITO-5 (3), NEW DELHI ON 30/1 2/2008. 13. THE ONLY ISSUE BEFORE US IS AS TO WHETHER, THE ITO WARD-3, GURGAON WAS COMPETENT TO EXERCISES THE JURISDICTION OVER TH E CASE OF THE ASSESSEE COMPANY, AND HAD POWERS TO ISSUE NOTICE U/ S. 147 & 148 OF THE ACT ,ON 13/3/2008. 14. AT THIS STAGE, IT MAY BE BENEFICIAL TO MAKE A R EFERENCE TO THE PROVISIONS OF SECTIONS 147 AND 124 DEALING WITH THE RE-ASSESSMENT AND THE JURISDICTION OF ASSESSING OFFICER S RESPECTIVE LY. SECTION 147 OF THE IT ACT READS AS UNDER:- 6 ITA NO. 578/DEL/10 IF THE ASSESSING OFFICER HAS REASON TO BELIEVE TH AT ANY INCOME, SUBJECT TO THE PROVISIONS OF SECTION 148 TO 153, ASSESSES OR REASSESSES SUCH INCOME 15. SIMILARLY, SECTION 124 OF THE IT ACT DEFINES TH E JURISDICTION OF THE AOS IN THE FOLLOWING MANNER:- JURISDICTION OF ASSESSING OFFICER WHEREBY VIRTUE OF ANY DIRECTION OR ORDER ISSUED UND ER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 120, THE ASSESSIN G OFFICER HAS BEEN VESTED WITH JURISDICTION OVER ANY AREA, WITHIN LIMI TS OF SUCH AREA, HE SHALL HAVE JURISDICTION- (A) IN RESPECT OF ANY PERSON CARRYING ON A BUSINESS OR PROFESSION, IF THE PLACE AT WHICH HE CARRIES ON HIS BUSINESS OR PR OFESSION IS SITUATE WITHIN THE AREA, OR WHERE HIS BUSINESS OR P ROFESSION IS CARRIED ON IN MORE PLACES THAN ONE, IF THE PRINCIPA L PLACE OF HIS PROFESSION OR BUSINESS IS SITUATE WITHIN THE AREA, AND (B) IN RESPECT OF ANY OTHER PERSON RESIDING WITHIN THE AREA. (2) WHERE A QUESTION ARISES UNDER THIS SECTION AS T O WHETHER AN ASSESSING OFFICER HAS JURISDICTION TO ASSESS ANY P ERSON, THE QUESTION SHALL BE DETERMINED BY THE DIRECTOR GENERA L OR THE CHIEF COMMISSIONER OF THE COMMISSIONER WHERE THE QUESTION IS ONE RELATING TO AREAS WITHIN THE JURISDICTION OF DIFFER ENT DIRECTOR GENERALS OR CHIEF COMMISSIONERS OR COMMISSIONER CON CERNED OR , IF THEY ARE NOT IN AGREEMENT, BY THE BOARD OR BY SUCH DIRECTOR 7 ITA NO. 578/DEL/10 GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER AS TH E BOARD MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, SPECIFY. (3) NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER (A) WHERE HE HAS MADE A RETURN [UNDER SUB-SECTION(1 ) OF SECTION 115WD OR] UNDER SUB-SECTION(1) OF SECTION 139, AFTE R THE EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS SERVED WITH A NOTICE UNDER SUB SECTION(1) OF SECTION 142 OR [SUBS SECTIO N(2) OF SECTION 115 WE OR] SUB-SECTION(2) OF SECTION 143 OR AFTER T HE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. (B) WHERE HE HAS MADE NO SUCH RETURN, AFTER THE EXP IRY OF THE TIME ALLOWED BY THE NOTICE UNDER [SUB SECTION (2) O F THE SECTION 115WD OR SUB-SECTION (1) OF SECTION 142 OR UNDER S UB-SECTION 115WH OR UNDER 148 OR UNDER SECTION 148 FOR THE MAK ING OF THE RETURN OR BY THE NOTICE UNDER THE FIRST PROVISO TO SECTION 115WF OF UNDER THE FIRST PROVISO SECTION 144] TO SHOW CAUSE WHY THE ASSESSMENT SHOULD NOT BE COMPLETED TO THE BEST OF T HE JUDGMENT OF THE ASSESSING OFFICER , WHICHEVER IS EARLIER. 16. FROM THE DISCUSSION, IT MAY BE SEEN THAT THE WO RDS USED IN SECTION 147 OF THE ACT ARE THE ASSESSING OFFICER AND W HICH CLEARLY MEANS A PARTICULAR OFFICER WHO HAS THE JURISDICTION, OVER T HE CASE OF A PARTICULAR ASSESSEE. IT IS NOT THE CASE THAT THE STATUTE HAS MANDATED EVERY ASSESSING OFFICER TO EXERCISE JURISDICTION, AS PER HIS OWN SWEET WILL. AS PER THE MECHANISM PROVIDED U/S 124 OF THE ACT, THE JURISDICTION OVER 8 ITA NO. 578/DEL/10 THE CASE OF THE APPELLANT ASSESSEE COULD HAVE BEEN EXERCISED EITHER BY THE DCIT, CIRCLE 5(1), DELHI, WITH WHOM THE RETURN OF INCOME FOR THE A.Y UNDER CONSIDERATION WAS FILED OR BY THE A.O WAR D 5(3) NEW DELHI WHO HAD BEEN ASSIGNED WITH THE JURISDICTION OVER CO MPANY ASSESSEE. SINCE, THIS IS A CASE WHERE THE ASSESSEE HAD ACTUAL LY FILED A RETURN OF INCOME WITH THE DCIT, CIRCLE 5(1), NEW DELHI, ON 3 0/4/2004, THE INCOME TAX OFFICER, WARD 3, GURGAON, COULD NOT HAVE EXERCISES JURISDICTION OVER THIS CASE OF THE ASSESSEE, ON THE BASIS OF HIS TERRITORIAL JURISDICTION. IT IS ALSO NOT A CASE WHERE THE LD.A SSESSING OFFICER QUESTIONS THE PRINCIPAL PLACE OF BUSINESS DECLARED BY THE ASSESSEE COMPANY. THEREFORE, IN THE LIGHT OF EXPRESSED PROV ISIONS OF SECTION 124 AND SECTION 147 OF THE IT ACT, THE ONLY OFFICER WHO COULD HAVE EXERCISED JURISDICTION OVER THE CASE OF THE ASSESSE, EVEN FOR THE PURPOSES OF ISSUE OF NOTICE SHOULD BE THE JURISDICTIONAL ITO WHO IS A T NEW DELHI. 17. WE, THEREFORE, ARE OF THE CONSIDERED OPINION TH AT THE ASSESSEE WAS CORRECT IN HOLDING THAT THE NOTICE ISSUED BY THE IT O WARD-3, GURGAON ON 13/3/2008 WAS WITHOUT JURISDICTION. HENCE, GROUN D NO. 1 OF THE REVENUE IS DISMISSED. GROUND NO. 2: ISSUE OF 292BB 18. THE PROVISION OF SECTION 292BB WILL NOT BE APPL ICABLE IN THE PRESENT CASE AS IT IS NOT A CASE OF A SERVICE/DEFECTIVE SERVICE, ETC. PROVISIONS OF SECTION 292BB READS AS UNDER: 292BB. NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUMS TANCES:- [WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING O R 9 ITA NO. 578/DEL/10 COOPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UN DER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERV ED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE P RECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQU IRY UNDER THIS 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 COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.] 19. ON GOING THROUGH THE ABOVE IT IS TO NOTED THAT THIS PROVISION IS REGARDING SERVICE OF THE NOTICE. IN THE CASE OF REA SSESSMENT U/S 148 THE AO HAVING JURISDICTION HAS TO RECORD REASONS AND AL SO ISSUE NOTICE U/S 148. THUS BOTH THE CONDITIONS OF RECORDING REASONS AND ISSUE OF NOTICE ARE TO BE SATISFIED. IN THE SECTION 292BB THERE IS NO REFERENCE REGARDING RECORDING OF REASONS. THUS IN THE ABSENCE OF REASON S BEING RECORDED BY AO HAVING JURISDICTION, THE REASSESSMENT PROCEEDING S WILL BE VOID AB- INITIO. 20. FURTHER, 292BB CANNOT CONFER JURISDICTION ON A PERSON, WHO IS NOT THE AO. IN TERMS OF NOTIFICATION ISSUED U/S 120(1) OF THE ACT. SECONDLY 10 ITA NO. 578/DEL/10 PROVISIONS OF SECTION 292BB ARE APPLICABLE FROM ASS ESSMENT YEAR 2008-09 AS HAS BEEN HELD BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MANI KAKAR (2009) 18 DTR (DEL) 145. IT M AY BE IMPORTANT TO NOTE THAT IN THIS CASE ALSO THE ISSUE WAS OF REASSE SSMENT U/S 148 AND THE COURT HAS HELD THAT NO RELIANCE CAN BE ON THE P ROVISIONS OF SECTION 292BB SINCE THIS PROVISION WAS NOT APPLICABLE TO TH E ASSESSMENT YEAR 2001-02 . 21. ALLAHABAD HIGH COURT IN THE CASE OF CIT & ANR. VS. MUKESH KUMAR AGRAWAL 345 ITR 29 (ALL) HAS DEALT WITH THE PROVISI ONS OF SECTION 292BB OF THE ACT. IN THIS CASE THE REVENUE RAISED A CONTENTION THAT IN VIEW OF THE PROVISIONS OF SECTION 292BB, THE ASSESS MENT CANNOT BE QUASHED IN CASE NOTICE U/S 143(2) HAS NOT BEEN ISSU ED. THE ALLAHABAD HIGH COURT HAS REJECTED THE CONTENTION AND HAS HELD AS UNDER:- 'SECTION 292BB IS A RULE OF EVIDENCE, WHICH VALID ATES THE NOTICE IN CERTAIN CIRCUMSTANCES. THE NEWLY INSERTED SECTION 2 92BB PROVIDES THAT WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS O R CO-OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSME NT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTI ON IN ANY PROCEEDING OR INQUIRY UNDER THE ACT THAT THE NOTICE WAS NOT SERVED UPON HIM OR NOT SERVED UPON HIM IN TIME OR SERVED UPON H IM IN AN IMPROPER MANNER. IN THE PRESENT CASE, THE TRIBUNAL HAS RETURNED THE FINDINGS THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS ADMITTED LY NOT ISSUED IN THIS CASE. THE ASSESSING AUTHORITY THUS DID NOT HAVE JUR ISDICTION TO PROCEED 11 ITA NO. 578/DEL/10 FURTHER AND MAKE ASSESSMENT. WE DO NOT FIND THAT TH E NON- CONSIDERATION OF SECTION 292BB, WHICH IS RULE OF EV IDENCE, AND A DEEMING PROVISION TO VALIDATE THE NOTICE IN CERTAIN CIRCUMSTANCES, WILL HAVE ANY EFFECT ON THE JUDGMENT IN HOTEL BLUE MOON (2010) 321 ITR 362 (SC). IT WAS HELD IN HOTEL BLUE MOONS CASE (20 10) 312 ITR 362 (SC) THAT THE VERY FOUNDATION OF THE JURISDICTION O F THE ASSESSING OFFICER IS ON THE ISSUANCE OF THE NOTICE UNDER SECTION 143( 2). 22. SIMILARLY PUNJAB & HARYANA HIGH COURT IN THE CASE O F CIT VS. CEBON INDIA LD. (2010) 34 DTR 119 (P&H) HAS HELD TH AT ABSENCE OF A NOTICE CANNOT BE HELD TO BE CURABLE UNDER SECTION 2 92BB. BY APPROVING THE JUDGMENT OF THE DELHI TRIBUNAL IN THE CASE OF CEBON INDIA LTD. VS. ADDL. CIT 12 DTR (DEL TRIB.) 402 THE COURT HAS OBSERVED '. IN THE ABSENCE OF NOTICE BEING SERVED, THE AO H AD NO JURISDICTION TO MAKE ASSESSMENT. ABSENCE OF NOTICE CANNOT BE HELD T O BE CURABLE UNDER SECTION 292BB OF THE ACT. 23. THE DELHI HIGH COURT IN THE CASE OF ITO VS. NAS EMEN FARMS PVT. LTD. (2010) 47 DTR 33 (DEL) HAS ALSO DEALT WITH THI S ISSUE AND HELD THAT PROVISIONS OF SECTION 292BB ARE APPLICABLE ONL Y FROM ASSESSMENT YEAR 2008-09 AND ALSO DO NOT APPLY WHERE THERE IS F AILURE TO ISSUE NOTICE AS JURISDICTION TO ASSESS ARISES ONLY AFTER THE NOTICE HAS BEEN ISSUED. 24. THE ISSUE IS ALSO COVERED BY THE SPECIAL BENCH OF THE DELHI TRIBUNAL IN THE CASE OF KUBER TOBACCO PRODUCTS PVT. LTD VS. DCIT 117 ITD 173(DELHI SPL. BENCH). 12 ITA NO. 578/DEL/10 25. FROM THE ABOVE DISCUSSION, WE HOLD THAT THE SEC TION 292 BB BEING PROSPECTIVE IN NATURE CANNOT BE APPLIED TO TH E FACTS OF THE PRESENT CASE. FURTHER, WE ARE AGREEABLE TO THE FIN DINGS OF THE LD.CIT(A) THAT SECTION 292 BB CANNOT BE APPLIED IN A CASE WHERE THE NOTICE U/S 148 HAS BEEN ISSUED BY THE A.O WITHOUT HAVING PROPER JURISDICTION. 26. WE ARE, THEREFORE, OF THE CONSIDERED OPINION TH AT THE ASSESSMENT CONCLUDED BY THE ITO, WARD-5(3), DELHI IS NOT VALID . WE, THEREFORE, UPHOLD THE FINDINGS OF THE LD. CIT(A) AND DISMISS T HIS GROUND OF APPEAL FILED BY THE REVENUE. THUS, THE APPEAL FILE D BY THE REVENUE IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21/10/ 2015 SD/- SD/- ( N. K. SAINI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 /10/2015 *R. NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 13 ITA NO. 578/DEL/10 DATE 1. DRAFT DICTATED ON 21.10.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 21 .10.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 21 .10.2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 21/10/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 21 .10.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON 21/10/2015 PS 7. FILE SENT TO THE BENCH CLERK 26 .10.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 14 ITA NO. 578/DEL/10