M/S. KAIZEN ORGANICS PVT. LTD., Jaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, Jaipur

ITA 834/JPR/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 6785 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHALA JCIT DHK
• Keywords: Depreciation; Period of limitation; Procedural lapse; Assessment record; Block assessment; Reassessment proceedings
• Section: 143(3); 143(1); 147; 145; 148; 144; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 834/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. M/S. KAIZEN ORGANICS PVT. LTD., S-5, 2 ND FLOOR, WINDSOR PLAZA, SANSAR CHANDRA ROAD, JAIPUR. CUKE VS. THE ACIT, CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACK 7588 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MAHALA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.12.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 19/12/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 4 TH SEPTEMBER, 2017 OF LD. CIT (A)-1, JAIPUR FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTIONS OF THE LD. AO IN REOPENING THE ASSESSMENT U/S 147 OF INCOME TAX ACT, 1961. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFI ED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE REASSESSMENT PROCEEDINGS BEING ILLEGAL AND WITHOUT ANY BASIS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTIONS OF THE LD. AO IN DISALLOWING THE CLAIM OF DEPRECIATION ON PLANT AND MACHINERY OF RS. 8,04,524/-. THE ACTION OF THE LD. CIT (A) IS IL LEGAL, UNJUSTIFIED 2 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEA SE BE GRANTED BY QUASHING THE SAID DISALLOWANCE OF RS. 8,04,524/- . 3. THE APPELLANT CRAVES ITS RIGHTS TO ADD, AMEND OR ALTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND AS UNDER :- IN THE FACTS AND CIRCUMSTANCES OF THE CASE, AND I N LAW, THE LD. AO HAS ERRED IN COMPLETING ASSESSMENT U/S 147 WITHO UT ISSUING NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961. THE ACTION OF LD. AO IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST T HE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING ENTI RE REASSESSMENT PROCEEDINGS, BEING VOID AND ILLEGAL. SINCE THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER, THEREFORE, WE FIRST PROPOSE TO TAKE THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. 2. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT T HE ADDITIONAL GROUND IS PURELY LEGAL IN NATURE AND ALL RELEVANT FACTS FOR ADJUDICA TION OF THIS GROUND ARE AVAILABLE ON RECORD. HE HAS FURTHER CONTENDED THAT NO NEW FACTS ARE REQUIRED TO BE EXAMINED OR INVESTIGATED, THEREFORE, THE ADDITIONAL GROUND RAIS ED BY THE ASSESSEE MAY BE ADMITTED FOR ADJUDICATION. IN SUPPORT OF HIS CONTE NTION HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NT PC VS. CIT 229 ITR 383 (SC) AND SUBMITTED THAT THE HONBLE SUPREME COURT HAS DI SCUSSED THE POWER OF THE TRIBUNAL IN ENTERTAINING THE FRESH PLEA AT THIS STA GE WHICH DOES NOT REQUIRE ANY NEW FACTS OR INVESTIGATION OF ANY FACT FOR ADJUDICATION AND, THEREFORE, A LEGAL ISSUE CAN BE RAISED BEFORE THE TRIBUNAL FOR FIRST TIME SO LONG A S THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THAT ITEM. 3 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. 3. ON THE OTHER HAND, THE LD. D/R HAS OBJECTED TO T HE ADMISSION OF THE ADDITIONAL GROUND AND SUBMITTED THAT THE ASSESSEE DID NOT RAIS E THIS ISSUE BEFORE THE AUTHORITIES BELOW AND AFTER THE AO AS WELL AS THE L D. CIT (A) HAVE DECIDED THE MATTER AGAINST THE ASSESSEE, THE ASSESSEE HAS FIRST TIME R AISED THIS GROUND WITHOUT EXPLAINING THE REASONS AS TO WHY THE SAME WAS NOT R AISED BEFORE THE AUTHORITIES BELOW, THEREFORE, THE SAME CANNOT BE ACCEPTED AT TH IS STAGE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD AS IT IS APPARENT FROM THE ADDITIONAL GROUND THAT THE ASSESSEE HAS RAISED THE ISSUE OF VALIDITY OF RE-ASSESSMENT PASSED UNDER SEC TION 143(3) READ WITH SECTION 147 OF THE IT ACT WITHOUT ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT. THUS THE ISSUE RAISED IN THE ADDITIONAL GROUND IS PURELY LEGAL IN NATURE AND ALL THE RELEVANT FACTS FOR ADJUDICATION OF THIS ISSUE ARE ALREADY ON RECORD, A S NO NEW FACT IS EITHER REQUIRED TO BE INVESTIGATED OR TO BE VERIFIED FOR THE PURPOSE O F ADJUDICATION OF THIS ISSUE RAISED BY THE ASSESSEE, THEN THERE IS NO REASON AS TO WHY THE ADDITIONAL GROUND RAISED BY THE ASSESSEE SHOULD NOT BE ADMITTED FOR ADJUDICATIO N ON MERITS. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND BY FOLLOWIN G THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC VS. CIT (SUPRA), WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR ADJUDICATION. VALIDITY OF RE-ASSESSMENT FOR WANT OF JURISDICTION UNDER SECTION 143(2) : 5. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. A/R OF THE ASSESSEE HA S SUBMITTED THAT THE RE- ASSESSMENT HAS BEEN COMPLETED BY THE AO WITHOUT ISS UING NOTICE UNDER SECTION 4 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. 143(2) OF THE IT ACT AND, THEREFORE, THE ORDER PASS ED BY THE AO IS ILLEGAL AND NOT SUSTAINABLE IN LAW AS HELD BY THE HONBLE SUPREME C OURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON, 188 TAXMAN 113 (SC). THE LD. A/R OF THE ASSESSEE HAS ALSO RELIED UPON THE FOLLOWING DECISIONS :- TRAVANCORE DIAGNOSTICS (P) LTD. VS. ACIT 390 ITR 167 (KERALA) PRINCIPAL CIT VS. SILVER LINE 383 ITR 455 (DELHI) THUS THE LD. A/R HAS SUBMITTED THAT THE IMPUGNED RE -ASSESSMENT ORDER PASSED BY THE AO IS BAD IN LAW AND LIABLE TO BE QUASHED. 6. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SE CTION 148 OF THE ACT BUT SUBMITTED BEFORE THE AO THAT THE ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 OF THE IT ACT MAY BE TREATED AS RETURN FILED IN RESPON SE TO NOTICE UNDER SECTION 148. THUS THE LD. D/R HAS SUBMITTED THAT WHEN NO FRESH R ETURN WAS FILED BY THE ASSESSEE THEN THERE IS NO REQUIREMENT FOR ISSUING NOTICE UND ER SECTION 143(2) OF THE ACT FOR COMPLETION OF THE RE-ASSESSMENT. HE HAS FURTHER CO NTENDED THAT THE ASSESSEE HAS PARTICIPATED IN THE RE-ASSESSMENT PROCEEDINGS AND N EVER RAISED ANY OBJECTION ABOUT THE NOTICE UNDER SECTION 143(2), THEREFORE, THE ASS ESSEE HAS SURRENDERED TO THE JURISDICTION OF THE AO AND CANNOT BE ALLOWED TO RAI SE THIS OBJECTION AT THIS STAGE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE LD. D/R WAS DIRECTED TO PRODUCE THE AS SESSMENT RECORD TO SHOW WHETHER THE AO ISSUED NOTICE UNDER SECTION 143(2) P RIOR TO COMPLETION OF THE 5 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. REASSESSMENT ORDER IN THIS CASE. THE LD. D/R HAS P RODUCED THE ASSESSMENT RECORD AND FAIRLY ADMITTED THE FACT THAT THERE IS NO NOTIC E UNDER SECTION 143(2) ISSUED BY THE AO AT ANY STAGE DURING THE REASSESSMENT PROCEED INGS. WE HAVE ALSO VERIFIED THE FACT WHETHER THE AO HAS STATED ANYTHING ABOUT T HE ISSUANCE OF NOTICE UNDER SECTION 143(2) IN THE PROCEEDING SHEET OF THE REASS ESSMENT RECORD BUT THERE IS NOTHING EVEN IN THE ORDER SHEET NOTINGS OF THE AO O F THE ASSESSMENT RECORD TO INDICATE ISSUANCE OF ANY NOTICE UNDER SECTION 143(2 ) OF THE ACT. THUS IT IS CLEAR THAT THE AO DID NOT ISSUE ANY NOTICE UNDER SECTION 143(2 ) PRIOR TO COMPLETION OF THE REASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSE E. THE NOTICE UNDER SECTION 143(2) IS A MANDATORY REQUIREMENT AND GIVES THE JUR ISDICTION TO THE AO TO PROCEED WITH THE SCRUTINY ASSESSMENT. THUS THE NOTICE UNDE R SECTION 143(2) IS A JURISDICTIONAL CONDITION AND IN THE ABSENCE OF NOTI CE UNDER SECTION 143(2), THE ORDER PASSED BY THE AO IS INVALID FOR WANT OF JURISDICTIO N. THE LD. D/R HAS SUBMITTED THAT THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME IN R ESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT, HOWEVER, IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS DULY RESPONDED TO THE NOTICE UNDER SECTION 148 AND SUBMITTED THAT THE RETURN OF INCOME FILED UNDER SECTION 139 OF THE ACT MAY BE TREATED AS RETURN IN RESPONSE TO NOTICE UNDER SECTION 148. THEREFORE, THERE IS A DUE COMPLIANCE ON THE P ART OF THE ASSESSEE FOR FILING THE RETURN IN RESPONSE TO NOTICE UNDER SECTION 148 OF T HE ACT. HENCE, WE DO NOT FIND ANY MERIT OR SUBSTANCE IN THE CONTENTION OF THE LD. D/R. THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (SUPRA) WHI LE CONSIDERING THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) IN THE BLOCK PROCEEDING S HAS HELD IN PARA 15 TO 18 AS UNDER :- 6 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. 15. WE MAY NOW REVERT BACK TO SECTION 158 BC(B) WHICH IS THE MATERIAL PROVISION WHICH REQUIRES OUR CONSIDERATION. SECTION 158 BC(B) PROVIDES FOR ENQUIRY AND ASSESSMENT. THE SAID PROVISION READS 'T HAT THE ASSESSING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME O F THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158 BB AND THE PROVISIO NS OF SECTION 142, SUB- SECTION (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS MAY BE, APPLY.' AN ANALYSIS OF THIS SUB SECTION IND ICATES THAT, AFTER THE RETURN IS FILED, THIS CLAUSE ENABLES THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT BY FOLLOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER SECTIONS 143(2)/142 AND COMPLETE THE ASSESSMENT UNDER SECTION 143(3). THIS SECTION DOES NOT PROVIDE FOR ACCEPTING THE RETURN AS PROVIDED UNDER SECTION 143(I)(A). THE ASSESSING OFFICER HAS TO COMPLETE THE ASSESSMENT UNDER SECTIO N 143(3) ONLY. IN CASE OF DEFAULT IN NOT FILING THE RETURN OR NOT COMPLYING W ITH THE NOTICE UNDER SECTIONS 143(2)/142, THE ASSESSING OFFICER IS AUTHORIZED TO COMPLETE THE ASSESSMENT EX- PARTE UNDER SECTION 144. CLAUSE (B) OF SECTION 158 BC BY REFERRING TO SECTION 143(2) AND (3) WOULD APPEAR TO IMPLY THAT THE PROVI SIONS OF SECTION 143(1) ARE EXCLUDED. BUT SECTION 143(2) ITSELF BECOMES NECESSA RY ONLY WHERE IT BECOMES NECESSARY TO CHECK THE RETURN, SO THAT WHERE BLOCK RETURN CONFORMS TO THE UNDISCLOSED INCOME INFERRED BY THE AUTHORITIES, THE RE IS NO REASON, WHY THE AUTHORITIES SHOULD ISSUE NOTICE UNDER SECTION 143(2 ). HOWEVER, IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 158-BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF N OTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. THE OTHER IMPORTANT FEATU RE THAT REQUIRES TO BE NOTICED IS THAT THE SECTION 158 BC(B) SPECIFICALLY REFERS TO SOME OF THE PROVISIONS OF THE ACT WHICH REQUIRES TO BE FOLLOWED BY THE ASSESSING OFFICER WHILE COMPLETING THE BLOCK ASSESSMENTS UNDER CHAPTE R XIV-B OF THE ACT. THIS LEGISLATION IS BY INCORPORATION. THIS SECTION EVEN SPEAKS OF SUBSECTIONS WHICH ARE TO BE FOLLOWED BY THE ASSESSING OFFICER. HAD TH E INTENTION OF THE LEGISLATURE WAS TO EXCLUDE THE PROVISIONS OF CHAPTER XIV OF THE ACT, THE LEGISLATURE WOULD HAVE OR COULD HAVE INDICATED THAT ALSO. A READING O F THE PROVISION WOULD CLEARLY INDICATE, IN OUR OPINION, IF THE ASSESSING OFFICER, IF FOR ANY REASON, REPUDIATES THE RETURN FILED BY THE ASSESSEE IN RESP ONSE TO NOTICE UNDER SECTION 158 BC(A), THE ASSESSING OFFICER MUST NECESSARILY I SSUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO SECTION 143(2) OF THE ACT. WHERE THE LEGISLATURE INTENDED TO EXCLUDE CERTAIN PROVISIONS FROM THE AMBIT OF SECTION 158 BC(B) IT HAS DONE SO SPECIFICA LLY. THUS, WHEN SECTION 158 BC(B) SPECIFICALLY REFERS TO APPLICABILITY OF THE P ROVISO THERETO CANNOT BE EXCLUDE. WE MAY ALSO NOTICE HERE ITSELF THAT THE CL ARIFICATION GIVEN BY CBDT IN ITS CIRCULAR NO.717 DATED 14 AUGUST, 1995, HAS A BI NDING EFFECT ON THE DEPARTMENT, BUT NOT ON THE COURT. THIS CIRCULAR CLA RIFIES THE REQUIREMENT OF LAW IN RESPECT OF SERVICE OF NOTICE UNDER SUB-SECTI ON (2) OF SECTION 143 OF THE ACT. ACCORDINGLY, WE CONCLUDE EVEN FOR THE PURPOSE OF CHAPTER XIV-B OF THE ACT, FOR THE DETERMINATION OF UNDISCLOSED INCOME FO R A BLOCK PERIOD UNDER THE PROVISIONS OF SECTION 158 BC, THE PROVISIONS OF SEC TION 142 AND SUB-SECTIONS 7 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. (2) AND (3) OF SECTION 143 ARE APPLICABLE AND NO AS SESSMENT COULD BE MADE WITHOUT ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT. HOWEVER, IT IS CONTENDED BY SRI SHEKHAR, LEARNED COUNSEL FOR THE D EPARTMENT THAT IN VIEW OF THE EXPRESSION 'SO FAR AS MAY BE' IN SECTION 153 BC (B), THE ISSUE OF NOTICE IS NOT MANDATORY BUT OPTIONAL AND ARE TO BE APPLIED TO THE EXTENT PRACTICABLE. IN SUPPORT OF THAT CONTENTION, THE LEARNED COUNSEL HAS RELIED ON THE OBSERVATION MADE BY THIS COURT IN DR. PRATAP SINGH'S CASE [1985] 155 ITR 166 (SC) . IN THIS CASE, THE COURT HAS OBSERVED THAT SECTION 37(2 ) PROVIDES THAT 'THE PROVISIONS OF THE CODE RELATING TO SEARCHES, SHALL SO FAR AS MAY BE, APPLY TO SEARCHES DIRECTED UNDER SECTION 37(2). READING THE TWO SECTIONS TOGETHER IT MERELY MEANS THAT THE METHODOLOGY PRESCRIBED FOR CA RRYING OUT THE SEARCH PROVIDED IN SECTION 165 HAS TO BE GENERALLY FOLLOWE D. THE EXPRESSION 'SO FAR AS MAY BE' HAS ALWAYS BEEN CONSTRUED TO MEAN THAT T HOSE PROVISIONS MAY BE GENERALLY FOLLOWED TO THE EXTENT POSSIBLE. THE LEAR NED COUNSEL FOR THE RESPONDENT HAS BROUGHT TO OUR NOTICE THE OBSERVATIO NS MADE BY THIS COURT IN THE CASE OF MAGANLAL VS. JAISWAL INDUSTRIES, NEEMAC H AND ORS., [(1989) 4 SCC 344], WHEREIN THIS COURT WHILE DEALING WITH THE SCOPE AND IMPORT OF THE EXPRESSION 'AS FAR AS PRACTICABLE' HAS STATED 'WITH OUT ANYTHING MORE THE EXPRESSION `AS FAR AS POSSIBLE' WILL MEAN THAT THE MANNER PROVIDED IN THE CODE FOR ATTACHMENT OR SALE OF PROPERTY IN EXECUTION OF A DECREE SHALL BE APPLICABLE IN ITS ENTIRETY EXCEPT SUCH PROVISION THEREIN WHICH MAY NOT BE PRACTICABLE TO BE APPLIED.' 16. THE CASE OF THE REVENUE IS THAT THE EXPRESSION 'SO FAR AS MAY BE APPLY' INDICATES THAT IT IS NOT EXPECTED TO FOLLOW THE PRO VISIONS OF SECTION 142, SUB- SECTIONS (2) AND (3) OF SECTION 143 STRICTLY FOR TH E PURPOSE OF BLOCK ASSESSMENTS. WE DO NOT AGREE WITH THE SUBMISSIONS O F THE LEARNED COUNSEL FOR THE REVENUE, SINCE WE DO NOT SEE ANY REASON TO REST RICT THE SCOPE AND MEANING OF THE EXPRESSION 'SO FAR AS MAY BE APPLY'. IN OUR VIEW, WHERE THE ASSESSING OFFICER IN REPUDIATION OF THE RETURN FILED UNDER SE CTION 158BC(A) PROCEEDS TO MAKE AN ENQUIRY, HE HAS NECESSARILY TO FOLLOW THE P ROVISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 143. 17. SECTION 158BH PROVIDES FOR APPLICATION OF THE OTHE R PROVISIONS OF THE ACT. IT READS : 'SAVE AS OTHERWISE PROVIDED IN THIS CHAP TER, ALL THE OTHER PROVISIONS OF THIS ACT SHALL APPLY TO ASSESSMENT MADE UNDER TH IS CHAPTER'. THIS IS AN ENABLING PROVISION, WHICH MAKES ALL THE PROVISIONS OF THE ACT, SAVE AS OTHERWISE PROVIDED, APPLICABLE FOR PROCEEDINGS FOR BLOCK ASSESSMENT. THE PROVISIONS WHICH ARE SPECIFICALLY INCLUDED ARE THOS E WHICH ARE AVAILABLE IN CHAPTER XIV-B OF THE ACT, WHICH INCLUDES SECTION 14 2 AND SUB-SECTIONS (2) AND (3) OF SECTION 143. 18. ON A CONSIDERATION OF THE PROVISIONS OF CHAPTER XI V-B OF THE ACT, WE ARE IN AGREEMENT WITH THE REASONING AND THE CONCLUSION REACHED BY THE HIGH COURT. 8 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. THUS THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS A MANDATORY CONDITION AND CANNOT BE DISPENSED WITH. IT WAS ALS O HELD THAT THE OMISSION ON THE PART OF THE AO TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND SAME IS NOT CURABLE. THE LD. D/R HAS CONTENDED THAT THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND DID NOT RAISE ANY OBJECTION. THEREFORE, ONCE THE ASSESSEE HAS SUBMITTED TO THE J URISDICTION OF THE AO, THEN IT CANNOT RAISE OBJECTION AT THIS STAGE. WE DO NOT AG REE WITH THIS CONTENTION OF THE LD. D/R BECAUSE IN THE CASE IN HAND WHAT IS ABSENT IS T HE ISSUANCE OF NOTICE UNDER SECTION 143(2) AND NOT THE SERVICE OF THE NOTICE IS SUED BY THE AO IS DISPUTED BY THE ASSESSEE. ONLY IN THE CASE WHERE THE NOTICE ISSUED UNDER SECTION 143(2) WAS DISPUTED BY THE ASSESSEE ON THE POINT OF SERVICE OF THE SAID NOTICE BUT THE FACT OF ISSUANCE OF NOTICE IS ALREADY AVAILABLE ON RECORD, IN SUCH A CASE IF THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS IN RESPO NSE TO THE NOTICE UNDER SECTION 143(2), THEN SUBSEQUENTLY THE ASSESSEE CANNOT TAKE THE OBJECTION OF NOTICE ISSUED UNDER SECTION 143(2) WAS NOT PROPERLY SERVED ON THE ASSESSEE. SINCE IT IS A CASE OF NON-ISSUANCE OF NOTICE UNDER SECTION 143(2), THEREF ORE, THE INITIATION OF SCRUTINY PROCEEDINGS ITSELF WAS WITHOUT JURISDICTION CONFERR ED BY THE PROVISIONS OF SECTION 143 OF THE ACT. THE HONBLE KERALA HIGH COURT IN THE C ASE OF TRAVANCORE DIAGNOSTICS PVT. LTD. VS. ACIT (SUPRA) HAS DEALT WITH THE ISSUE OF V ALIDITY OF REASSESSMENT ORDER PASSED BY THE AO WITHOUT ISSUING NOTICE UNDER SECTI ON 143(2) IN PARA 33 & 34 AS UNDER :- 33. THE EXTENDED QUESTION THEN IS WHETHER EVEN IF THE ASSESSEE IS DEEMED TO HAVE PARTICIPATED IN THE PROCEEDINGS UNDER SECTION 143, EVEN WITHOUT THE ASSESSING OFFICER HAVING ISSUED THE MANDATORY NOTIC E, WOULD THE REVENUE BE 9 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. ENTITLED TO THE BENEFIT PROVIDED UNDER SECTION 292B B OF THE ACT. SECTION 292BB CREATES AN ESTOPPEL AGAINST THE ASSESSEE IN CLAIMIN G THAT NO NOTICE HAS BEEN SERVED ON HIM, IF HE HAS PARTICIPATED IN THE PROCEE DINGS. HOWEVER, THE SAID SECTION DOES NOT IN ANY MANNER GRANT ANY PRIVILEGE TO THE ASSESSING OFFICER IN DISPENSING WITH THE ISSUANCE OF A NOTICE UNDER SECT ION 143(2) OF THE ACT. SINCE THE JURISDICTION UNDER SECTION 143 IS FOUNDED ON TH E ISSUANCE OF A NOTICE UNDER SECTION 143(2), THE ASSESSING OFFICER COULD HAVE AS SUMED JURISDICTION ONLY AFTER ISSUING A NOTICE UNDER SECTION 143 (2). EVEN THE PARTICIPATION OF THE ASSESSEE WOULD NOT PROVIDE THE BENEFIT UNDER SECTIO N 292BB TO THE REVENUE. THE REQUIREMENT THAT A NOTICE BE ISSUED IS MANDATOR Y AND THE ASSESSING OFFICER HAS NO OTHER OPTION BUT TO ISSUE THE NOTICE BEFORE COMMENCING THE JURISDICTION. HERE, WE DRAW SUPPORT FROM THE JUDGME NT OF THE HON'BLE SUPREME COURT IN ASSTT. CIT V. GREATER NOIDA INDUSTRIAL DEV ELOPMENT AUTHORITY [2015] 379 ITR 14 (ALL.) , WHEREIN IT WAS HELD AS UNDER: 'SECTION 148(1) PROVIDES FOR SERVICE OF NOTICE AS A CONDITION PRECEDENT TO MAKING THE ORDER OF ASSESSMENT. ONCE A NOTICE IS ISSUED WITHIN THE PERIOD OF LIMITATION, JURISDICTION BECOMES VESTED I N THE INCOME-TAX OFFICER TO PROCEED TO REASSESS. THE MANDATE OF SECT ION 148(1) IS THAT REASSESSMENT SHALL NOT BE MADE UNTIL THERE HAS BEEN SERVICE. THE REQUIREMENT OF ISSUE OF NOTICE IS SATISFIED WHEN A NOTICE IS ACTUALLY ISSUED.' 34. THE ONLY BENEFIT THAT SECTION 292BB OBTAINS TO THE ASSESSING OFFICER IS THAT AFTER THE ISSUANCE OF SUCH NOTICE THE ASSESSEE APPE ARS AND PARTICIPATES IN THE PROCEEDINGS, THEN HE SHALL NOT HE HEARD, SUBJECT TO THE PROVISO TO THE SAID SECTION, THAT HE HAD NOT BEEN PROPERLY SERVED WITH NOTICE. WE HAVE NO HESITATION IN HOLDING THAT THE ASSESSING OFFICER CA N CLAIM AND AVAIL THE BENEFIT UNDER SECTION 292BB AND THE ASSESSEE WILL BE BURDEN ED BY THE RIGOUR OF ESTOPPEL CONTAINED THEREIN ONLY AFTER A NOTICE UNDE R SECTION 143(2) HAD BEEN VALIDLY ISSUED. WHEN IT IS VIRTUALLY ADMITTED THAT NO SUCH NOTICE HAD BEEN ISSUED, THE ASSESSING OFFICER LOSES EVEN THE AUTHOR ITY TO ENTER INTO THE JURISDICTION UNDER SECTION 143 AND THE PARTICIPATIO N OR OTHERWISE OF THE ASSESSEE WOULD BE OF NO AVAIL. IT IS HERE THAT THE WORDS OF ROWLAT, J. VIDE SUPRA IN PARAGRAPH 5 OF THIS JUDGMENT ASSUM ES CLIMATARIC IMPORTANCE BECAUSE IN TAXATION NOTHING IS TO BE INTENDED AND N OTHING CAN BE PRESUMED. IF A NOTICE UNDER SECTION 143(2) HAS NOT BEEN ISSUED, THE ASSESSING OFFICER CANNOT CLAIM THE BENEFIT UNDER SECTION 292BB AND TH E CLAIM THAT THE EARLIER NOTICE EXTRACTED IN PARAGRAPH 29 OF THE JUDGMENT WA S INTENDED TO BE THE NOTICE ISSUED UNDER SECTION 143(2) AND THAT SUBSTANTIAL CO MPLIANCE UNDER SECTION 143(2) MUST BE INFERRED, CANNOT BE COUNTENANCED. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE AO HAS PASSED THE RE-ASSESSMENT ORDER WITHOUT ISSUING NOTI CE UNDER SECTION 143(2), THEN THE RE-ASSESSMENT ORDER IS NOT SUSTAINABLE IN LAW A ND THE SAME IS INVALID. HENCE, 10 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR. FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT AS WELL AS OF THE HONBLE HIGH COURTS AS REFERRED HEREINABOVE, WE QUASH THE IMPUGN ED RE-ASSESSMENT ORDER PASSED BY THE AO. SINCE WE HAVE QUASHED THE RE-ASSESSMENT ORDER ITSELF, THEREFORE, THE OTHER GROUNDS RAISED BY THE ASSESSEE BECOME INFRUCT UOUS AND WE DO NOT PROPOSE TO GO INTO THE OTHER GROUNDS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 19/12/201 8. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 19/12/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. KAIZEN ORGANICS PVT. LTD., J AIPUR. 2. THE RESPONDENT THE ACIT, CIRCLE-3, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 834/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 11 ITA NO. 834/JP/2017 M/S. KAIZEN ORGANICS PVT. LTD., JAIPUR.