M/s. Greater Noida Industrial Development Authority, Uttar Pradesh V. ACIT, Noida

ITA 5825/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86561 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 30-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S GILL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Application of stay; Question of law; Procedural lapse; Assessment record; Revenue expenditure; Capital expenditure
• Section: 143(3); 142(1); 147; 148; 6; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : C NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, A.M. AND SHRI A.T. VARKEY , J . M . ITA NO S . 5821 - 5822 - 5823 - 5824 - 5825 AND 5826 /DEL/201 4 ASSESSMENT YEAR S : 200 6 - 07 TO 2011 - 12 GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY VS. ACIT, CIRCLE 3 H 169, CHITVAN ESTATE SECTOR GAMMA NOIDA GREATER NOIDA CITY DT. GAUTAM BUDH NAGAR, UP PAN: AAALGO 129 L (APPELLANT) (RESPONDENT) APPELLANT BY : - SHRI AJAY WADHWA, ADV. RESPONDENT BY : - SH. RS GILL, CIT, DR. O R D E R PER J.SUDHAKAR REDDY, AM ALL THESE APPEALS ARE FILED BY THE ASSESSEE AND ARE DIRECTED AGAINST A SEPARATE ORDER DT. 26.9.2014 PASSED FOR AY 2006 - 07 AND A COMMON ORDER FOR THE AY 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11 DT. 26.9.2014 AND A SEPARATE ORDER FOR THE AY 2011 - 12 WHICH IS A LSO DT. 26.9.2014. AS THE ISSUES ARISING IN ALL THESE APPEALS ARE COMMON, FOR THE SAKE OF CONVENIENCE THEY ARE HEARD TOGETHER AND ARE DISPOSED OF BY WAY OF THIS COMMON ORDER. 2. FACTS IN BRIEF: - THE BRIEF NARRATION OF FUNCTIONS OF THE ASSESSEE ARE AS UNDER. 1. (I) THE GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY (GNIDA) IS A PUBLIC AUTHORITY CONSTITUTED U/S. 3 OF UTTAR PRADESH INDUSTRIAL AREA DEVELOPMENT ACT, 1976 (UP ACT NO. 6 OF 1976). GNIDA IS RESPONSIBLE FOR THE PLANNED DEVELOPMENT OF THE AREA U NDER ITS JURISDICTION. 2 (II) GNIDA IS DECLARED AS INDUSTRIAL TOWNSHIP BY THE GOVERNOR OF UTTAR PRADESH UNDER PROVISO TO CLAUSE (1) OF ARTICLE 243 Q OF THE CONSTITUTION OF INDIA. IT IS A LOCAL AUTHORITY IN AS MUCH AS, IT IS BESTOWED WITH THE AUTHORITY TO DI SCHARGE FUNCTIONS OF AN INDUSTRIAL TOWNSHIP AS WELL AS MUNICIPALITY. GNIDA DOES NOT HAVE A SEPARATE MUNICIPALITY. (III) GNIDA DISCHARGES FUNCTIONS OF MAINTAINING SEWERAGE, WATER, ELECTRICITY, ROADS AND SOCIAL INFRASTRUCTURE SUCH AS SCHOOL, COLLEGES, UNIV ERSITIES, DISPENSARIES, HOSPITALS, PARKS, COMMUNITY CENTERS ETC FOR THE BENEFIT OF PUBLIC AT LARGE. 2.1. THE INCOME OF GNIDA WAS EXEMPT BOTH UNDER SECTION 10(20A) , AS WELL AS 10(20) OF THE INCOME TAX ACT, 1961 TILL 31.3.2003. SECTION 10(20A) WAS OMITTED VIDE FINANCE ACT, 2002 AND AN EXPLANATION TO SECTION 10(20) WAS INSERTED WHEREBY SECTION 10(20) WAS RESTRICTED TO THE MUNICIPALITIES. EXEMPTION FROM TAX OF INCOME OF GNIDA WAS DENIED U/S. 10(20) BY THE ASSESSING OFFICER. 2. 2 . FACTS OF THE CASE AS RECORD ED BY THE LD.CIT(A) A T PARA 2 OF HIS ORDER OF A.Y. 2006 - 07 ARE AS FOLLOWS. IN THIS CASE IN VIEW OF AMENDMENT IN S.10(2) OF THE I.T.ACT WEF 1.4.2003 THE AO WAS OF THE VIEW THAT GNIDA IS NO MORE A LOCAL AUTHORITY WITHIN THE MEANING OF S.10(20) OF THE ACT AND HENCE NOT EXEMPT FROM INCOME TAX. IN CONSEQUENCE THE AO INITIATED ASSESSMENT PROCEEDINGS U/S 147/148 FOR AY UNDER APPEAL BY ISSUING NOTICE U/S 148 CALLING FOR RETURN OF INCOME FOR AY 2006 - 07. IN RESPONSE THE ASSESSEE FILED RETURN OF INCOME WHEREIN I NCOME OF RS.68,84,43,757.74 HAS BEEN CLAIMED EXEMPT U/S 10(20) OF THE ACT. ON CONSIDERATION OF ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE THE AO HELD THAT IN VIEW OF AMENDMENT IN S.10(20) WEF 1.4.2003 GR.NOIDA AUTHORITY IS NO MORE A LOCAL AUTHORITY WITHIN THE MEANING OF S.10(20) OF THE ACT AND HENCE NOT EXEMPT FROM INCOME TAX. AS SUCH ASSESSEE S CLAIM FOR EXEMPTION U/S 10(20) WAS DISALLOWED. BESIDES ABOVE EXPENDITURE CLAIMED BY THE ASSESSEE UNDER THE HEADS BUILDING REPAIR AND MAINTENANCE AND CERTAIN OT HER EXPENSES WERE ALSO DISALLOWED AND ACCORDINGLY AO PASSED THE ORDER DT. 19.2.2014 U/S 143(3)/147. 3 2. 3 . THE FIRST APPELLATE AUTHORITY FOR THE VARIOUS REASONS GIVEN IN HIS ORDER PARTLY CONFIRMED THE ORDER OF THE AO. 2.4 . FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS. 1. THAT THE LD. CIT (A) WITHOUT APPRECIATING THE MERIT OF THE SUBMISSION WITH RESPECT TO GROUND NO. 1 DISMISSED THE SAME HOLDING IT TO BE VAGUE AND GENERAL IN NATURE. 2. THAT THE LD. CIT (A) WITHOUT APPRECIA TING THE MERIT OF WRITTEN SUBMISSIONS WITH RESPECT TO GROUND NO. 2, 4, 5 & 6 HAS SIMPLY REPRODUCED THE SAME IN HIS ORDER AND HAS DISMISSED THE SAME IN VIEW OF THE JUDGMENT OF HONORABLE ALLAHABAD HIGH COURT. 3. THAT THE LD. CIT (A) WITHOUT APPRECIATING THE MERIT OF THE SUBMISSION WITH RESPECT TO GROUND NO. 3 REJECTED THE SAME AND CONFIRMED THE ACTION OF THE A.O. 4. THAT THE LD. CIT (A) WITHOUT APPRECIATING THE MERIT OF THE SUBMISSION WITH RESPECT TO GROUND NO. 8, HAS ERRED IN CONFIRMING THE ADDITION MADE BY LD. A.O. BY DISALLOWING REVENUE EXPENDITURE FOR REPAIR AND MAINTENANCE OF BUILDING BY TREATING IT AS CAPITAL EX PENDITURE. 5. THAT THE ORDER OF THE LD. A.O. IS VOID AB INTIO IN AS MUCH AS, NO MANDATORY NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 WAS ISSUED AT ANY STAGE OF THE ASSESSMENT PROCEEDINGS. 6. THAT THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN TAKING THE ENTIRE SURPLUS IN THE INCOME & EXPENDITURE ACCOUNT AS INCOME. THEY HAVE FAILED TO APPRECIATE THAT THE RECEIPTS AND EXPENDITURE OF GNIDA HAVE COMPONENTS WHICH ARE CAPITAL IN NATURE, EXEMPT IN MANY CASES, DO NOT RELATE TO THE FINANCIAL YEAR ETC. TO SUM UP, THE COMPUTATION OF INCOME AS PER THE PROVISIONS OF INCOME TAX ACT, 1961 HAVE NOT BEEN UNDERTAKEN AND THE ENTIRE SURPLUS HAS BEEN TAKEN AS INCOME. 7. THAT THE AUTHORITIES BELOW HAVE ERRED TO APPRECIATE THE FACT THAT GNIDA DOES NOT AND CANNOT UN DERTAKE ANY BUSINESS ACTIVITY AND, THEREFORE, THE SURPLUS, IF ANY, IS NOT TAXABLE UNDER ANY HEAD OF INCOME. 8. THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THE FACT THAT SURPLUS AS PER THE INCOME AND EXPENDITURE ACCOUNT HAS FURTHER BEEN ALLOCATED /PROVIDED FOR THE ACTIVITIES OF GNIDA AND, THEREFORE, THE AMOUNTS BEING IN THE NATURE OF PROVISION, THERE IS NO SURPLUS AVAILABLE TO TAXATION AFTER REDUCING THESE ALLOCATIONS / PROVISIONS. 9. THAT THE AUTHORITIES BELOW HAVE FAILED TO GIVE CREDIT FOR THE T AX COLLECTED BY THEM FROM BANKS AND INSTITUTIONS WITH WHOM GNIDA WAS MAINTAINING DEPOSITS AND GETTING INTEREST THEREON. 4 10. THAT THE AUTHORITIES BELOW HAVE ERRED IN GRANTING CREDIT FOR TDS BY ALLOTTEES AND BANKS AND IGNORED THE HUGE AMOUNTS OF TAX APPEARI NG IN FORM 26AS/FORM 16A. 11. THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THE FACT THAT GNIDA CAN BE HELD TO BE CARRYING OUT CHARITABLE ACTIVITIES AND, THEREFORE, ITS RECEIPTS ARE NOT AMENABLE TO TAX. FOR THE SAKE OF BREVITY, THE GROUNDS OF APP EAL RAISED BEFORE LD. CIT(APPEAL) ARE REPRODUCED BELOW - (I) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. AO HAS ACTED AGAINST THE PRINCIPLES OF NATURAL JUSTICE IN COMPLETING THE ASSESSMENT WITHIN A SHORT PERIOD OF 72 DAYS; (II ) THAT THE LD. AO HAS ERRED IN TREATING THE EXCESS OF RECEIPTS OVER EXPENDITURE AS TAXABLE INCOME WITHOUT APPRECIATING THE FUNCTIONS PERFORMED BY THE APPELLANT. THE APPELLANT IS PERFORMING SOVEREIGN FUNCTIONS AS MANDATED BY THE SECTION 3 OF UTTAR PRADESH INDUSTRIAL DEVELOPMENT ACT, 1976 AND IS NOT MANDATED TO CARRY OUT ANY BUSINESS ACTIVITY; (III) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. AO HAS ERRED IN FRAMING ASSESSMENT UNDER SECTION 143(3)/147 OF THE INCOME TAX ACT, 19 61 WITHOUT FOLLOWING THE MANDATORY PROCEDURE PRESCRIBED UNDER SECTION 147 TO 151 OF THE INCOME TAX ACT, 1961, AS SUCH THE ASSESSMENT MAY PLEASE BE HELD AS BAD IN LAW AND MAY KINDLY BE SET ASIDE. (IV) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE LD. AO HAS ERRED IN INTERPRETING THE PROVISIONS OF THE SECTION 10(20) OF THE INCOME TAX ACT, 1961, RELIED UPON THE ALLAHABAD HIGH COURT JUDGEMENT IN THE CASE OF NEW OKHLA INDUSTRIAL DEVELOPMEN T AUTHORITY (NOIDA) WITHOUT TAKING THE COGNIZANCE OF THE FACT THAT NOIDA HAS FILED A SLP WITH HONORABLE SUPREME COURT AND HONORABLE SUPREME COURT HAS GRANTED THE LEAVE ON THE QUESTION OF LAW VIDE ITS ORDER DATED 17.01.2014; (V) THAT THE LD. AO HAS FAILED TO APPRECIATE THE FUNCTIONS PERFORMED AND DISCHARGE D BY THE ASSESSEE AND IN TREATING THE STATUS OF THE ASSESSEE AS ARTIFICIAL JURIDICAL PERSON INSTEAD OF LOCAL AUTHORITY; (VI) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. AO HAS IGNORED THE PROVISIONS OF ARTICLE 289 OF THE CONSTIT UTION OF INDIA; (VII) THAT THE LD. AO HAS ERRED IN MAKING AN ADDITION OF RS. 5,50,79,979/ - UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 WITHOUT ACCORDING AN ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT CONFRONTING THE INFORMATION SUBMITTED BY TH E APPELLANT; (VIII) THAT THE LD. AO HAS ERRED IN MAKING AN ADDITION OF RS. 1,76,82,719/ - BY DISALLOWING REVENUE EXPENDITURE FOR REPAIR AND MAINTENANCE OF BUILDING BY TREATING IT AS CAPITAL EXPENDITURE AND ALLOWING DEPRECIATION ON IT WITHOUT GIVING AN ADE QUATE OPPORTUNITY OF BEING HEARD. (IX) THAT THE LD. AO HAS ERRED AS A MATTER OF FACT IN INITIATING THE PENALTY UNDER SECTION 271A OF THE INCOME TAX ACT, 1961 AS NO BOOKS OF ACCOUNTS WERE 5 EVER REQUIRED TO BE PRODUCED DURING THE ASSESSMENT PROCEEDINGS BY THE LD. A.O.; (X) THAT THE LD. AO HAS ERRED AS A MATTER OF FACT AND IN LAW BY INITIATING THE PENALTY UNDER SECTION 271B FOR NON SUBMISSION OF AUDIT REPORT UNDER SECTION 44AB DESPITE THE FA CT THAT APPELLANT IS NOT MANDATED TO CARRY OUT ANY BUSINESS ACTIVITY BY SECTION 3 OF UTTAR PRADESH INDUSTRIAL DEVELOPMENT ACT, 1976; (XI) THAT THE LD. AO HAS ERRED AS A MATTER OF FACT IN INITIATING THE PENALTY UNDER SECTION 272B FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SECTIONS 139A (5) OR (SA) REGARDING QUOTING OF 'PAN' IN INCOME TAX RETURN OR CHALLAN OR CORRESPONDENCE WITH INCOME TAX AUTHORITY OR INTIMATING TO THE PERSON RESPONSIBLE FOR DEDUCTING TAX UNDER CHAPTER XVIIB OF THE INCOME TAX ACT,1961; ( XII) THAT THE LD. AO HAS ERRED AS A MATTER OF FACT IN INITIATING THE PENALTY UNDER SECTION 271(1)( C) REGARDING CONCEALMENT OF PARTICULAR OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME; (XIII) THAT 'THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTE R, VARY AND/OR WITHDRAW OR RESCIND ALL OR ANY OF THE GROUND OF APPEAL ON OR BEFORE THE FINAL HEARING.' PRAYER: AS PER THE FACTS AND CIRCUMSTANCES OF THE CASE MENTIONED IN STATEMENT OF FACTS AND GROUNDS OF APPEAL SUBMITTED BY THE APPELLANT - PROCEEDINGS UNDER SECTION 143(3) /147 OF T HE INCOME TAX ACT,1961 BE QUASHED. THE ADDITIONS AMOUNTING TO RUPEES 70,61,26,476/ - MAY PLEASE BE DELETED. 3. BEFORE US MR.AJAY WADHWA, THE LD.COUNSEL FOR THE ASSESSEE ARGUED FOR GROUND NO.5 ONLY . GROUND NO.5 5.THAT THE ORDER OF THE LD. A.O. IS VOID AB INTIO IN AS MUCH AS, NO MANDATORY NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 WAS ISSUED AT ANY STAGE OF THE ASSESSMENT PROCEEDINGS . THIS GROUND IS COMM ON FOR ALL THE ASSESSMENT YEARS I.E. AY 2006 - 07 TO 2011 - 12. 3.1. TH E LD.COUNSEL FOR THE ASSESSEE MR.AJAY WADHWA SUBMITTED THAT THE AO HAD , AT THE STAGE OF ASSESSMENT PROCEEDINGS , FAILED TO ISSUE THE MANDATORY NOTICES U/S 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER 6 REFERRED TO AS THE ACT ). CONSEQUENTLY HE SUBMITTED TH AT , THE AO CANNOT BE SAID TO HAVE ASSUMED JURISDICTION TO MAKE THE ASSESSMENT AND HENCE THE ORDER PASSED BY HIM IS INVALID AND VOID AB INITIO. 3.2. TO DEMONSTRATE THAT THE AO HAD NOT ISSUED THE MANDATORY NOTICE U/S 14 3(2) OF THE ACT, THE LD.COUNSEL FOR THE ASSESSEE REFERRED TO AND SUBMITTED AS FOLLOWS. 5.1 THE APPELLANT RECEIVED A NOTICE UNDER SECTION 148 OF INCOME TAX ACT, 1961 DATED 26TH DAY OF MARCH 2013 FROM INCOME TAX DEPARTMENT WITH RESPECT TO THE ASSESSMENT YEAR 2006 - 07 (HEREINAFTER REFERRED TO AS 'THE SAID NOTICE'). THE SAID NOTICE WAS SERVED UPON THE APPELLANT ON THE 28TH DAY OF MARCH 2013 REQUIRING THE APPELLANT TO FILE ITS INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2006 - 07 (HEREINAFTER REFERRED TO AS THE SAID ASSESSMENT YEAR'); (COPY OF NOTICE I S ENCLOSED REF PG 434 - 438 OF PAPER BOOK) . 5.2 THE APPELLANT FILED THE INCOME TAX RETURN IN RESPONSE TO THE NOTICE ON THE 12TH DAY OF APRIL 2013 ALONG WITH FINANCIAL STATEMENTS COMPRISING OF BALANCE SHEET AND INCOME & EXPENDITURE ACCOUNT FOR THE ASSESSM ENT YEAR 2006 - 07, DECLARING THE INCOME AT NIL. (COPIES OF A CKNOWLEDGEMENT OF ITR FOR A YS 06 - 07, 07 - 08, 08 - 09, 09 - 10, 10 - 11 AND 11 - 12 ARE ENCLOSED AS ANNEXURE 1 OF SYNOPSIS) 5.3 THE APPELLANT AFTER SUBMITTING ITS INCOME TAX RETURN IN RESPONSE TO THE SAID NOTICE, FILED AN APPLICATION WITH THE INCOME TAX DEPARTMENT REQUESTING IT TO PROVIDE 'REASONS TO BELIEVE' FOR ISSUANCE OF THE SAID NOTICE ON THE O 5TH DAY OF MAY 2013 IN TERMS OF THE PROVISIONS OF SECTION 148 OF THE INCOME TAX ACT, 1961; (COPY OF LETTER F OR AYS 06 - 07, 07 - 08,08 - 09,09 - 10,10 - 11 AND 11 - 12 ENCLOSED AS ANNEXURE 2 OF SYNOPSIS) . 5.4 INCOME TAX DEPARTMENT VIDE ITS LETTER DATED 03RD DAY OF DECEMBER 2013 PROVIDED THE APPELLANT WITH A STATEMENT OF REASONS (HEREINAFTER REFERRED TO AS 'THE SAID STAT EMENT OF REASONS') FOR ISSUANCE OF THE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. THE INCOME TAX DEPARTMENT TOOK MORE THAN 6 MONTHS TO REPLY TO THE REQUEST OF THE APPELLANT FOR PROVIDING THE STATEMENT OF REASONS; (COPY OF STATEMENT OF REASONS EN CLOSED) (REFER PG 439 - 442 OF PAPER BOOK) 5.5 THE LD. AO ISSUED A NOTICE DATED 10TH DAY OF DECEMBER 2013 UNDER SECTION 142 (1) OF THE INCOME TAX ACT, 1961 ALONG WITH A DETAILED 7 QUESTIONNAIRE AND FIXED THE DATE OF COMPLIANCE ON 19TH DAY OF DECEMBER, 2013 AND STARTED THE PROCEEDINGS UNDER SECTION 147 OF THE ACT (HEREINAFTER REFERRED TO AS THE 'FIRST PROCEEDING NOTICE'); (COPY OF NOTICE ENCLOSED) (REFER PG 443 - 465 OF PAPER BOOK) . 5.6 ON THE DATE OF COMPLIANCE, COUNSEL OF THE APPELLANT ATTENDED AND SUBMITTE D THE FOLLOWING DETAILS IN RESPONSE TO THE DETAILED QUESTIONNAIRE - I. REPLY TO POINT NO. 1 II. REPLY TO POINT NO. 2 THE NEXT DATE OF HEARING WAS FIXED FOR 10TH DAY OF JANUARY 2014; 5.7 THE APPELLANT ON THE HEARING ON 10TH DAY OF JANUARY 2014 SUBMITTED THE FOLLOWING DETAILS TO THE LD. AO - (I) REPLY TO POINT NO.5 (II) REPLY TO POINT NO.7 (III) REPLY TO POINT NO.8 (IV) REPLY TO POINT NO.11 (V) REPLY TO POINT NO.12 (VI) REPLY TO POINT NO.14 (VII) REPLY TO POINT NO.18 (VIII) REPLY TO POINT NO.19 THE NEXT DATE OF HEARING WAS FIXED FOR 28TH DAY OF JANUARY 2014; 5.8 THE APPELLANT ON THE HEARING ON 28TH DAY OF JANUARY 2014 SUBMITTED THE FOLLOWING DETAILS TO THE LD. AO - (I) REPLY TO POINT NO. 3 (II) REPLY TO POINT NO. 10 (III) REPLY TO POINT NO. 13 (IV) REPLY TO POINT NO. 15 (V) REPLY TO POINT NO. 20 (VI)REPLY TO POINT NO. 4 (VII) REPLY TO POINT NO. 9 5.9 THE NEXT DATE OF HEARING WAS FIXED FOR 03RD DAY OF FE B 2014; THE APPELLANT ON THE HEARING ON 03RD DAY OF FEB 2014 SUBMITTED THE FOLLOWING DETAILS TO THE LD. AO - I. REPLY TO POINT NO. 6 II. REPLY TO POINT NO. 21 THE NEXT DATE OF HEARING WAS FIXED FOR O 6TH DAY OF FEB 2014; 5.10 THE APPELLANT IN ADDITION TO THE ABOVE DETAILS SUBMITTED COPIES OF ALL TDS RETURNS FILED DURING THE FINANCIAL YEAR RELATED TO ASSESSMENT YEAR 2006 - 07 ALONG WITH COPIES OF CHALLANS AND RELATED DETAILS THERETO ON DATED 14TH FEB,2014. 5.11 THE LD. AO PASSE D AN ASSESSMENT ORDER UNDER SECTION 143(3)/147 OF THE INCOME TAX ACT 1961 ON THE 19TH DAY OF FEB 2014 (HEREINAFTER REFERRED TO AS 'THE SAID ASSESSMENT ORDER'); THE SAID ASSESSMENT 8 ORDER WAS RECEIVED BY THE APPELLANT ON 24TH DAY OF FEB 2014. THE ORDER PASSE D BY THE LD. AO IS PREMEDITATED AND PREDETERMINED AS IT WAS FINALIZED BY THE INCOME TAX AUTHORITIES BEFOREHAND AND IS DATED THE SAME DATE I.E. 19TH DAY OF FEB 2014, WHICH WAS THE DATE OF THE LAST HEARING; 3.3. HE ALSO ENCLOSED A CHART SHOWING NOTICES ISS UED BY THE AO, ASSESSMENT YEAR WISE AND DATE WISE , AT ANNEXURE 3 OF THE SYNOPSIS, AND ARGUED THAT FROM THIS CHART , IT IS EVIDENT THAT NO NOTICE U/S 143(2) WAS ISSUED BY THE AO FOR ANY OF THESE ASSESSMENT YEARS, AFTER THE ASSESSEE FILED ITS RETURN OF INCOME , CONSEQUENT TO S.148 NOTICE RECEIVED BY IT. 3.4. THE LD.COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAD INSPECTED THE ASSESSMENT RECORDS AND ORDER SHEETS , AFTER PAYING NECESSARY FEE FOR INSPECTION AND COPY OF THE NOTINGS WERE TAKEN FROM THE ASSESSMENT RECORD . THESE DOCUMENTS ARE FILED BEFORE THE ITAT AS PART OF THE PAPER BOOK. HE SUBMITTED THAT A PERUSAL OF THESE NOTINGS DEMONSTRATED , THAT NO NOTICE U/S 143(2) WAS ISSUED AT ALL, BY THE AO. HE FURTHER POINTED OUT THAT NOWHERE IN THE ASSESSMENT O RDER, THE AO MENTIONED THAT A NOTICE U/S 143(2) WAS ISSUED. MR.AJAY WADHWA FURTHER POINTED OUT THAT , DURING THE ARGUMENTS BEFORE THE TRIBUNAL, ON THE STAY PETITION, THE ASSESSEE HAD SPECIFICALLY RAISED TH IS ISSUE OF NON ISSUANCE OF NOTICE U/S 143(2) AN D THE DEPARTMENT CHOSE TO REMAIN SILENT, EVEN THOUGH THE ASSESSMENT FOLDERS WERE READILY AVAILABLE WITH THEM AND UNDER THOSE CIRCUMSTANCES THE TRIBUNAL GRANTED STAY OF DEMAND TO THE ASSESSEE AND HAD DIRECTED THE REVENUE TO PRODUCE ALL THE ASSESSMENT RECORD S BEFORE THE TRIBUNAL DURING THE COURSE OF FINAL HEARING. 3.5. HE FURTHER MADE THE FOLLOWING LEGAL SUBMISSIONS. (A) ISSUAL OF NOTICE U/S 143(2) IS MANDATORY, EVEN WHERE A RETURN OF INCOME HAS BEEN FILED IN PURSUANCE TO NOTICE U/S 148 OF THE ACT. FOR THI S PROPOSITION HE RELIED ON THE F O L L O W I N G JURISDICTIONAL AND OTHER HIGH COURT JUDGEMENTS. 1) CIT VS. ADARSH TRAVEL BUS SERVICE (2012) 17 TAXMANN.COM 140 (ALL.) 2) CIT VS. RAJEEV SHARMA (2010) 192 TAXMAN 197 (ALL.) 9 3) ALPINE ELECTRONICS ASIA PTE. LTD. VS. DIT (2012) 18 TAXMAN.COM 246 (DELHI) 4) RAJ KUMAR CHAWLA VS. IYO (2005) 1 SOT 934 (DEL) (SB) (B) HE FURTHER SUBMITTED THAT FAI LURE TO ISSUE NOTICE U/S 143(2) WITHIN THE PRESCRIBED PERIOD, CANNOT BE CURED BY TAKING RECOURSE TO S.292 BB OF THE ACT. FOR THIS PROPOSITIO N HE RELIED ON THE FOLLOWING CASE LAWS. 1) CIT - II, LUCKNOW VS. SALARPUR COLD STORAGE (P) LTD.(2014) 50 TAXMANN.COM 105 (ALL.) 2) CIT VS. PANORAMA BUILDERS (P) LTD. (2014) 45 TAXMAN.COM 159 (GUJARAT) 3) CIT VS. MUKESH KUMAR AGRAWAL (2012) 25 TAXMANN.COM 112 (ALL.) 4) ITO VS. ALIGARH AUTO CENTRE (2013) 34 TAXMANN.COM 211 (AGRA - TRIB.) HE PRAYED FOR RELIEF. 4. LD.CIT, D.R. SHRI RS GILL VEHEMENTLY OPPOSED THE CONTENTIONS OF THE ASSESSEE. HE SUBMITTED THAT TH IS GROUND OF NON - ISSUANCE OF NOTICE U/S 143(2) BY TH E A.O. WAS NOT RAISED EITHER BEFORE THE AO OR BEFORE THE LD.CIT(A). HE SUBMITTED THAT THE LD.CIT(A) HAD NO OCCASION TO CONSIDER THIS CONTENTION OF THE ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSMENT RE CORD HAS TO BE GONE INTO, TO COME TO A FIRM CONC LUSION THAT NO NOTICE U/S 143(2) HAS BEEN SERVED ON THE ASSESSEE. WHILE AGREEING THAT THE BENCH HAS SPECIFICALLY DIRECTED THE REVENUE TO PRODUCE ALL THE ASSESSMENT RECORDS DURING THE COURSE OF FINAL HEARING , FOR VERIFYING THIS CONTENTION OF THE ASSESSEE HE SUBMITTED THAT THE ASSESSMENT RECORDS CAN BE PRODUCED BEFORE THE BENCH . THE BENCH DIRECTED THE LD.D.R. TO PRODUCE ALL THE ASSESSMENT RECORDS BEFORE THE BENCH WITHIN ONE WEEK FROM THE DATE OF HEARING, TO WHICH HE AGREED. 5. RIVAL CONTENTIONS HEARD. 6. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ON PERUSAL OF ORDERS OF LOWER AUTHORITIES, MATERIAL ON RECORD AND CASE LAWS CITED, WE HOLD AS FOLLOWS. 7. THE AO HAD AT PARA 1 OF HIS ORDER RECORDED THE FOLLOWING FINDING. 10 IN THIS CASE, PROCEEDINGS U/S 147/148 WERE INITIATED AFTER RECORDING THE REASONS AND OBTAINING APPROVAL OF JCIT, RANGE 3, NOIDA U/S 151(2) OF THE ACT VIDE HIS LETTER DT. 26.3.2013. CONSEQUENTIALLY AS PER ESTABLISHED LAW AND PROCEDURE, NOTICE U/S 148 DT. 26.3.2013 WAS ISSUED AND DULY SERVED ON 28.3.2013. AS PER THE NOTICE THE ASSESSEE WAS REQUIRED TO FILE ITS RETURN OF INCOME FOR AY 2006 - 07 AND GET IT DELIVERED TO THIS OFFICE WITHIN 30 DAYS FROM THE DATE OF SERVICE OF THIS NOTICE. HOWEVER, LETTER DT. 2.5.2013 WAS RECEIVED IN THIS OFFICE ON 9.5.2013 FROM THE COUNSEL OF THE ASSESSEE ASKING FOR COPY OF THE REASONS RECORDED FOR ISSUING NOTICE U/S 148 OF THE ACT. CERTIFIED OF THE SAME WAS FURNISHED TO HIM ON 3.12.2013. RETURN OF INCOME FOR AY 2006 - 07, WHEREIN INCOME OF RS.68,84,43,757.74 HAS BEEN CLAIMED EXEMPT U/S 10(20) OF THE ACT HAS BEEN FILED ON 12.4.2013. FURTHER, NOTICE U/S 142(1) ALONG WITH QUESTIONNAIRE OF THE ACT WAS ALSO ISSUED ON 10.12.2013 AND FIXING THE DATE OF COMPLIANCE ON 19.12.2013. 7.1. FROM A RE ADING OF THE ABOVE RECORDING IN THE ASSESSMENT ORDER , IT IS CLEAR THAT THE ASSESSEE HAS FILED A RETURN ON 12.5.201 3 IN RESPONSE TO NOTICE U/S 148 OF THE ACT AND THAT ONLY A NOTICE U/S 142(1) HAS BEEN ISSUED. THERE IS NO MENTION OF ISSUANCE OF A NOTICE U/ S 143(2) OF THE ACT. 7.2. WE NOW EXTRACT THE RELEVANT PROVISIONS OF THE ACT. SECTION 143(2) OF THE ACT, READS AS UNDER: 'WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139,OR IN RESPONSE TO A NOTICE UNDER SUB - SECTION (1) OF SECTION 142,THE ASSESSING OFFI CER SHALL, - ................................................. (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER - PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RE TURN: PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. ' SECTION 148 OF THE ACT, ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSES SMENT. (1) BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147,THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE 11 NOTICE, A RETURN OF HIS INCOME OR TH E INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS A S MAY BE PRES - CRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 : ' SECTION 292BB OF THE ACT, NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUMSTANCES. 'WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR CO - OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPO N HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS - 2(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 SHALL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT. ' 7. 3 . THE CONTENTION OF THE ASSESSEE IS THAT T HE ASSESSING OFFICER HAS NOT ISSUED NOTICE U/S 143(2) FOR ANY OF THE IMPUGNED ASSESSMENT YEARS, SUBSEQUENT TO FILING OF A RETURN BY THE ASSESSEE . THE CLAIM OF THE ASSESSEE THAT NOTICE U/ S 14 3(2) OF THE ACT WAS NOT AT ALL ISSUED FOR ALL THE IMPUGNED AYS , COULD NOT BE FACTUALLY CONTROVERTED BY THE REVENUE. DURING THE HEARING OF THE STAY PETITION, THE REVENUE WAS SPECIFICALLY DIRECTED TO PRODUCE THE ASSESSMENT RECORD , FOR ALL THESE ASSESSMENT YEARS , DURING THE FINAL HEARING. THIS WAS NOT DONE. DURING TH E COURSE OF FINAL HEARING THE BENCH HAS DIRECTED THE REVENUE TO PRODUCE THE ASSESSMENT RECORD WITHIN ONE WEEK FROM THE DATE OF HEARING. THIS IS NOT DONE TILL DATE. THE REVENUE IS SILENT ON THIS FACTUAL MATTER TILL DATE. HENCE WE DRAW A CONCLUSION THAT , T HE REVENUE COULD NOT REBUT THE FACTUAL SUBMISSIONS OF THE ASSESSEE , THAT NO NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE , FOR ANY OF THESE ASSESSMENT YEARS. 12 7.4. BE IT AS IT MAY, THE ASSESSEE, IN THIS CASE, HAS INSPECTED THE ASSESSMENT RECORDS, AFTER PAYING INSPECTION FEE AND HAS FILED COPIES OF THE NOTINGS TAKEN FROM THE ASSESSMENT RECORDS. AT PAGES 466 TO 468 OF THE PAPER BOOK, THE CORRESPONDENCE AND NOTING, IN THIS REGARD IS ENCLOSED. AT PAGES 469 TO 476 ARE ENCLOSED EXTRACTS OF ORDER SHEET ENTRIES FOR EA CH OF THE IMPUGNED AYS, AS NOTED BY THE COUNSELS , DURING THE COURSE OF INSPECTION OF RECORDS ON 5.11.2014 AND 14.11.2014. THE PAPER BOOK WITH ALL THESE EVIDENCES WAS FILED BY THE ASSESSEE WELL IN ADVANCE. THE REVENUE HAS NOT POINTED OUT ANY DEFECT OR FA LSITY IN THE DOCUMENT AND EVIDENCE FILED BY THE ASSESSEE , IN THE FORM OF A PAPER BOOK. H E N C E T H E FACTUAL CONTENTIONS OF THE ASSESSEE COULD NOT BE CONTROVERTED BY THE REVENUE , WITH EVIDENCE. 7.5. A PERUSAL OF THE CONTENTS AND DOCUMENTS IN THE PAPER BOOK, WHEN READ ALONG WITH THE RECORDING OF FACT BY THE AO IN THE ASSESSMENT ORDER, WE HAVE TO COME TO A CONCLUSION ON FACTS T H A T NO NOTICE U/S 143(2) HAS BEEN EVER ISSUED TO THE ASSESSEE , BY THE ASSESSING OFFICER , FOR ANY OF THESE ASSESSMENT YEARS. 7.6. WE NOW EXAMIN E THE LEGAL POSITION. THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ADARSH TRAVEL BUS SERVICE (2012) 17 TAXMANN.COM 140 (ALL.) AT PARAS 5 TO 9 HAS HELD AS FOLLOWS. 5. BY CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF RECORD, IT APP EARS THAT SECTION 143(2) OF THE ACT IS IN TWO PARTS. THE FIRST PART DEALS WITH JURISDICTION AND SECOND WITH THE PROCEDURE. THE PROVISO TO SECTION 143(2) OF THE ACT PUTS AN EMBARGO ON THE ASSESSING OFFICER TO EXERCISE JURISDICTION AFTER THE EXPIRY OF 12 MON THS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED BY THE ASSESSEE. IT IS THE DISCRETION OF THE ASSESSING OFFICER TO ACCEPT THE RETURN AS IT IS OR TO PROCEED FURTHER WITH THE ASSESSMENT OF INCOME, ONCE THE ASSESSING OFFICER DECIDES TO PROCEED, HE HAS TO ISSUE NOTICE UNDER SECTION 143(2) WITHIN THE PRESCRIBED TIME - LIMIT TO MAKE THE ASSESSEE AWARE THAT HIS RETURN HAS BEEN SELECTED FOR SCRUTINY ASSESSMENT. 6. IT MAY BE MENTIONED THAT THE HON'BLE SUPREME COURT IN THE CASE OF ASSTT: CIT V. HOTEL BLUE MOON [2010] 188 TAXMAN 113OBSERVED THAT THE NOTICE UNDER SECTION 143(2) WITHIN THE TIME PRESCRIBED, IS MANDATORY. SIMILAR VIEWS WERE EXPRESSED BY THIS COURT IN IT APPEAL NO. 134 OF 2005 (CIT V. BORA POLYCLINIC 13 (P.) LTD.) DECIDED ON 05.07.2010 AS WELL AS IN CIT V. RAJEEV SHARMA [2010] 192 TAXMAN 197 (AIL.). 7. IN VIEW OF WELL SETTLED LEGAL PROPOSITION (SUPRA), WE ARE OF THE VIEW THAT PROVISO TO SECTION 143(2) APPLIES TO RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. THEREFORE, IT WAS INCUMBENT UPON THE AO TO ISSUE NOTICE UNDER SECTION 143(2) WITHIN THE PERIOD, AS STIPULATED IN THE PROVISION. 8. IN THE INSTANT CASE, ADMITTEDLY, THE NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE DATE OF FILING OF THE RETURN. FU RTHER, IT MAY BE MENTIONED THAT OMISSION ON THE PART OF THE ASSESSING O FFICER TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE, AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DI SPENSED WITH AS ALREADY OBSERVED IN HOTEL BLUE MOON (SUPRA). 9. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER PASSED BY THE TRIBUNAL IS HEREBY SUSTAINED ALONG WITH THE REASONS MENTIONED THEREIN. THE ANSWER TO THE SUBSTANTIAL QUESTION OF LAW IS IN FAVOUR OF T HE ASSESSEE AND AGAINST THE REVENUE. THE APPEAL HAS NO MERITS AND THE SAME IS DISMISSED. AGAIN THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAJEEV SHARMA (2010) 192 TAXMAN 197 (ALL.) AT PARA 45 HAS HELD AS FOLLOWS. 45. IN VIEW OF THE A BOVE, THE PROVISION CONTAINED IN S.143(2) OF THE ACT IS MANDATORY IN NATURE AND IT SHALL BE OBLIGATORY FOR THE AO TO APPLY MIND TO THE CONTENTS OF THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT AND RECORD REASONS AND THEREAFTER, ISSUE NOTICE U/S 143(2) OF THE ACT BEFORE PROCEEDING TO DECIDE THE CONTROVERSY WITH REGARD TO ESCAPED ASSESSMENT . THE HON BLE DELHI HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA PTE. LTD. VS. DIT (2012) 18 TAXMAN.COM 246 (DELHI) AT PARA 24 HAS HELD AS FOLLOWS. 24. S.143(2) IS APPLICABLE TO PROCEEDINGS U/S 147/148 OF THE ACT. PROVISO TO S.148 OF THE ACT PROTECTS AND GRANTS LIBERTY TO THE REVENUE TO SERVE NOTICE U/S 143(2) OF THE ACT BEFORE PASSING OF THE ASSESSMENT ORDER FOR RETURNS FURNISHED ON OR BEFORE 1 ST OCTOBER,2005. IN RESPECT OF RETURNS FILED PURSUANT TO NOTICE U/S 148 OF THE ACT AFTER 1 ST OCTOBER,2005, IT IS MANDATORY TO SERVE NOTICE U/S 143(2) OF THE ACT, WITHIN THE STIPULATED TIME LIMIT . 14 7.7 . WE ARE BOUND BY THE JUDGEMENT OF THE JURISDICTIONAL HI GH COURT. RESPECTFULLY FOLLOWING THE SAME WE CANCEL ALL THE ABOVE ASSESSMENT ORDERS , AS BAD IN LAW. COMING TO THE PROPOSITION AS TO WHETHER THE PROVISIONS OF S.292BB WOULD COME TO THE RESCUE OF THE REVENUE, WE FIND THAT THE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT - 2, LUCKNOW VS. SALARPUR COLD STORAGE (P) LTD. (SUPRA) HAD AT PARA 13 HELD AS FOLLOWS. 13. IN OUR VIEW, WHERE THE ASSESSING OFFICER FAILS TO ISSUE A NOTICE WITHIN THE PERIOD OF SIX MONTHS AS SPELT OUT IN THE PROVISO TO CLAUSE (II) OF SECTIO N 143 (2) OF THE ACT, THE ASSUMPTION OF JURISDICTION UNDER SECTION 143(3) OF THE ACT WOULD BE INVALID. THIS DEFECT IN REGARD TO THE ASSUMPTION OF JURISDICTION CANNOT BE CURED BY TAKING RECOURSE TO THE DEEMING FICTION UNDER SECTION 292 BB OF THE ACT. THE FICTION IN SECTION 292 BB OF THE ACT OVERCOMES A PROCEDURAL DEFECT IN REGARD TO THE NON - SERVICE OF A NOTICE ON THE ASSESSEE, AND OBVIATES A CHALLENGE THAT THE NOTICE WAS EITHER NOT SERVED OR THAT IT WAS NOT SERVED IN TIME OR THAT IT WAS SERVED IN AN IMPRO PER MANNER, WHERE THE ASSESSEE HAS APPEARED IN A PROCEEDING OR CO OPERATED IN AN ENQUIRY WITHOUT RAISING AN OBJECTION. SECTION 292 BB OF THE ACT CANNOT COME TO THE AID OF THE REVENUE IN A SITUATION WHERE THE ISSUANCE OF A NOTICE ITSELF WAS NOT WITHIN THE PRESCRIBED PERIOD, IN WHICH EVENT THE QUESTION OF WHETHER IT WAS SERVED CORRECTLY OR OTHERWISE, WOULD BE OF NO RELEVANCE WHATSOEVER. FAILURE TO ISSUE A NOTICE WITHIN THE PRESCRIBED PERIOD WOULD RESULT IN THE AO ASSUMING JURISDICTION CONTRARY TO LAW. 7. 7 . IN VIEW OF THE ABOVE BINDING JUDGEMENTS OF THE JURISDICTIONAL HIGH COURT, WE HAVE NO OTHER ALTERNATIVE BUT TO HOLD THAT , THE AO HAS WRONGLY ASSUMED JURISDICTION UNDER THE ACT , FOR ALL THESE ASSESSMENT YEARS. WE ALSO HOLD THAT, THIS DEFECT IN THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER CANNOT BE CURED BY TAKING RECOURSE TO THE DEEMING FICTION U/S 292 BB OF THE ACT. WITH RESPECT TO THE ARGUMENT OF THE LD.D.R. THAT , THIS CONTENTION HAS NOT BEEN RAISED BY THE ASSESSEE , BEFORE THE A.O. OR THE LD.CIT(A), WE HOLD THAT THIS IS A LEGAL ISSUE AND AS ALL THE FACTS ARE ON RECORD , THIS CONTENTION CAN BE RAISED BEFORE US , BY THE ASSESSEE FOR THE FIRST TIME, AS THIS IS A JURIS DICTIONAL ISSUE. THUS WE DISMISS THIS CONTENTION OF THE LD.D.R. AS DEVOID ON MERIT. 15 7. 8 . IN VIEW OF THE ABOVE DISCUSSION WE QUASH ALL THE IMPUGNED ASSESSMENT ORDERS PASSED BY THE AO, AS CONFIRMED BY THE FIRST APPELLATE AUTHORITY FOR THE AY 2006 - 07 , 2007 - 08, 2008 - 09, 2009 - 10, 2010 - 11 AND 2011 - 12. 8. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9 T H JANUARY, 2015 . S D / - S D / - ( A.T. VARKEY ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 0 9 T H JANUARY, 2015 *MANGA COPY OF THE ORDER FORWA RDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR