ASHWIN S MEHTA, MUMBAI V. DCIT CC 23, MUMBAI

ITA 8704/MUM/2011

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0322 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-04-2017
• Assessment Year: 1991-1992
• Appeal Filed On: 23-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL SPECIAL
• Keywords: Unexplained investment; Invalid notice; Principle of natural justice; Retrospective amendment; Cost of acquisition; Revised return; Reassessment proceedings
• Section: 143(3); 142(1); 234B; 147; 148; 132; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S.PANNU, VICE PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.8704/MUM/2011 ASSESSMENT YEAR: 1991-92 SHRI ASHWIN S. MEHTA, 32, MADHULI, DR. A.B. ROAD, WORLI MUMBAI 4000 018. PAN: ABAPM2121M VS. ACIT, CC-23 , AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DHARMESH SHAH & SHRI DHAVAL SHAH (AR) REVENUE BY : DR. P. DANIEL, SPECIAL COUNSEL FOR DEPARTMENT DATE OF HEARING : 16.11.2018 DATE OF PRONOUNCEMENT : 30.11.2018 O R D E R PER PAWAN SINGH, JM: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF THE CIT(A)-40, MUMBAI DATED 16.11.2011 FOR THE A.Y 1991 -92. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING VALIDITY OF THE ASSESSMENT ORDER PASSED U/S 147 OF THE IT ACT BY THE A.O. 2. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE A.O HAS NOT COMPLIED WITH THE PRINCIPLES O F NATURAL JUSTICE EITHER DURING THE COURSE OF THE ASSESSMENT PROCEEDI NGS OR DURING THE COURSE OF THE REMAND PROCEEDINGS. 3. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN NOT DETERMINING THE INCOME BASED ON THE FINAL BOOKS OF ACCOUNT THER EBY CONFIRMING THE NET ACCRETION METHOD ADOPTED BY THE A.O FOR DET ERMINATION OF THE TOTAL INCOME. THE LD. CIT(A) OUGHT TO HAVE ACCEPTE D BOOK RESULT SHOWN BY THE APPELLANT. 2 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI 4. THE LD. CIT(A) OUGHT TO HAVE HELD THAT DETERMINA TION OF TOTAL INCOME OF APPELLANT BY CONSIDERING NET ACCRETION TO VARIOUS ASSETS AS UNDER IS WHOLLY ERRONEOUS AND UNSUSTAINABLE. PARTICULARS AMOUNT NET ACCRETION TO THE OTHER ASSETS 9,17,83,546 NET ACCRETION TO THE CLIENT CONTROL A/C (-) 46,67,09 ,099 NET ACCRETION TO SHAREHOLDING 67,26,37,149 TREASURY DIFFERENCE RECEIVABLE 41,48,440 VYAJ BADLA INCOME 2,28,343 DECLARATION BY LATE SHRI HARSHAD S. MEHTA 51,00,000 TOTAL 30,71,88,049 ADD; PERSONAL EXPENSES 5,07,857 TOTAL NET ACCRETION TO THE NON-REVENUE ACCOUNTS 30,76,95,636 5. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE CORRECT QUANTITY OR PURCHASE AND SALE OF S HARES SHOULD BE ADOPTED WHILE DETERMINING THE INCOME BASED ON THE N ET ACCRETION METHOD ADOPTED BY THE A.O. 6. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE DETERMINATION OF THE SHAREHOLDINGS OF THE APPELLANT IN ANNEXURE A-1 BASED ON INFORMATION RECEIVED FROM CLIENTS AND OTHE R SOURCES. 7. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE SHARE HOLDINGS OF THE APPELLANT IN ANNEXURE A-1 ON THE BASIS OF THE SEIZED DATA BY INCLUDING THE PURCHASE AND SALES MAD E BY THE APPELLANT AS A BROKER. 8. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE DETERMINATION OF UNACCOUNTED INVESTMENTS AS PER ANN EXURE A-3 OF THE ASSESSMENT ORDER AT RS. 67,26,37,149/- ON THE B ASIS OF THE INFORMATION COLLECTED FROM VARIOUS COMPANIES ALLEGE DLY SHOWING THE SHAREHOLDING OF THE APPELLANT WITHOUT PROVIDING THE COPIES OF THE SAID LETTERS/INFORMATION RELIED UPON BY HIM. 9. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE VALUE OF THE UNACCOUNTED INVESTMENT AS PER ANNEXURE A 3 BASED ON THE AVERAGE OF THE MARKET RATES AS ON 01.04.1990 AN D 31.03.1991 WITHOUT APPRECIATING THAT THE VALUE OF INVESTMENT O UGHT TO HAVE BEEN DETERMINED AT THE COST OF ACQUISITION BASED ON THE DATES OF PURCHASE. 10. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ADDITION OF RS. 41,48,440/- ON ACCOUNT OF TREAS URY DIFFERENT RECEIVABLE BASED ON THE SEIZED RECORDS OF LATE SHRI HARSHAD S. MEHTA. 11. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ADDITION OF RS. 2,28,343/- ON ACCOUNT OF VYAJ B ADLA INCOME BASED ON THE SEIZED RECORDS OF LATE SHRI HARSHAD S. MEHTA. 12. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN RE JECTING THE CLAIM OF DEDUCTION ON ACCOUNT OF INTEREST EXPENDITU RE. 3 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI 13. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN REJECTING THE CLAIM OF DEDUCTION OF OTHER EXPENSES AS PER THE BOO KS OF ACCOUNT. 14. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN NOT HOLDING THAT THE GAIN ON SALE OF SHARES IS TO BE TAXED AS C APITAL GAIN. THE LD. CIT(A) HAS ERRED IN REJECTING THE CLAIM OF DEDU CTION U/S 48 OF THE ACT. 15. THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE ALTE RNATE WORKING OF THE TOTAL INCOME MADE BY THE A.O AS GIVE N BELOW IS WHOLLY ERRONEOUS AND UNSUSTAINABLE. PARTICULARS AMOUNT DIVIDEND INCOME 15,63,037 DEBENTURE INTEREST 4,14,813 TREASURY DIFFERENCE RECEIVABLE 41,48,110 CLIENT DIVIDEND / INTEREST 36,814 INTEREST ON OTHER LOANS 62,411 MONEY MARKET BROKERAGE A/C. NO. 3086 48,82,750 VYAJ BADLA INCOME 2,28,343 ADDITIONAL INCOME OFFERED U/S 132(4) OF THE ACT BY LATE SHRI HARSHAD S. MEHTA. 3,80,57,000 TOTAL 4,93,93,278 LESS: EXPENSES 13,11,627 TOTAL INCOME AS PER REVENUE ACCOUNT 4,80,80,651 16. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE LEVY OF INTEREST U/S 234A, 234B AND 234C OF THE ACT. 17. THE APPELLANT CRAVES LEAVE OF YOUR HONOUR TO AD D TO, ALTER, AMEND AND/ OR DELETE ALL OR ANY OF THE FOREGOING GR OUNDS OF APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE IS A N INDIVIDUAL AND WAS A MEMBER OF BOMBAY STOCK EXCHANGE (BSE). T HE ASSESSEE IS A BROTHER OF LATE SHRI HARSHAD S. MEHTA WHO WAS INVOLVED IN SECURITIES SCAM OF 1992. THE ASSESSEE WAS NOTIFIED UNDER THE PROVISIONS OF SPECIAL COURT ACT. A SEARC H AND SEIZURE OPERATION UNDER SECTION(U/S) 132 OF THE INCOME TAX ACT, 1961(ACT) WAS CARRIED ON THE PREMISES OF THE ASSESS EE ON 27.09.1990. DURING THE COURSE OF SEARCH A LARGE NU MBER OF DOCUMENTS WERE SEIZED. THE ASSESSEE HAS NOT FILED RETURN OF 4 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI INCOME FOR THE YEAR UNDER CONSIDERATION WITHIN TIME PRESCRIBED UNDER SECTION 139 OF THE ACT. A NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 20.05.1992 REQUIRING THE ASSESSEE TO FURNISH THE RETURN OF INCOME. IN RESPONSE TO THE S AID NOTICE THE ASSESSEE FILED RETURN OF INCOME AND ALSO FURNISHED THE VARIOUS DETAILS. THE ASSESSMENT WAS ULTIMATELY COMPLETED U /S 144/143(3) R.W.S 147 OF THE IT ACT ON 24.03.1994 DE TERMINING THE TOTAL INCOME AT RS. 30,76,95,636/-. AGGRIEVED BY VARIOUS ADDITIONS MADE IN THE ASSESSMENT ORDER THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), WHEREIN ALL THE ADDITIONS WERE CONFIRMED AND NO RELIEF WAS GRANTED EXCEPT IN RESPE CT OF ADDITION OF RS. 380 LAKHS MADE ON ACCOUNT OF DECLAR ATION BY LATE SHRI HARASHAD S. MEHTA WHICH WAS DELETED. THE ASSESSEE FURTHER FILED APPEALS BEFORE THE ITAT VIDE ITA NO. 3022/MUM/2005 AND ITA NO. 4994/MUM/2003 AND THE MAT TER WAS RESTORED TO THE FILE OF THE CIT(A) TO DECIDE TH E ISSUE AFRESH. THEREFORE, THE CIT(A) PASSED IMPUGNED ORDER CONFIRM ING VARIOUS ADDITIONS. AGGRIEVED BY THE ORDER OF THE LD. CIT(A ) THE ASSESSEE HAS FILED PRESENT APPEAL. 3. AT THE OUTSET OF HEARING THE LD. COUNSEL FOR THE AS SESSEE SUBMITS THAT THE ASSESSEE HAS RAISED THE GROUND OF APPEAL NO. 1, WHICH IS LEGAL GROUND AND GOES TO THE ROOT OF TH E CASE BEING JURISDICTIONAL ISSUE AND MAY BE DECIDED FIRST. THE LD. AR FURTHER SUBMITTED THAT THE DATE OF FILING OF RETURN OF INCO ME FOR IMPUGNED ASSESSMENT YEAR WAS 31.03.1993. THE A.O I SSUED 5 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI NOTICE U/S 148 OF THE ACT ON 20.05.1992 I.E MUCH PR IOR TO THE DATE OF FILING OF RETURN OF INCOME. THE ASSESSEE W AS NOT GRANTED THE STATUTORY TIME AVAILABLE FOR HIM FOR FILING OF THE REGULAR RETURN OF INCOME TO DISCLOSE HIS RETURN OF INCOME D URING THE YEAR. BEFORE ALLOWING SUCH TIME TO FILE THE RETURN OF INCOME, IT CANNOT BE PRESUMED THAT SOME INCOME HAS ESCAPED ASS ESSMENT SO AS TO ASSUME JURISDICTION TO REOPEN THE ASSESSME NT. THE LD. AR OF THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE N OTICE U/S 148 OF THE IT ACT DATED 20.05.1992, COPY OF WHICH I S PLACED ON RECORD (PAGE NO. 115 OF PAPER BOOK). PERUSAL OF NO TICE REVEALS THAT A.O PROVIDED TIME OF LESS THAN 30 DAYS FOR FIL ING THE RETURN OF INCOME. THE LD. AR SUBMITTED THAT THE CONTENT O F THE NOTICE WAS CONTRARY TO THE PROVISIONS OF SEC. 148 OF THE I T ACT (AT THE RELEVANT TIME). THE NOTICE ISSUED BY THE A.O IS BE ING INVALID AND THEREFORE THE SUBSEQUENT ACTION INITIATED THERE IN IS AB- INITIO. THUS THE ASSESSMENT ORDER PASSED BASED ON SUCH NOTICE IS INVALID IN THE EYES OF LAW. IN SUPPORT OF HIS S UBMISSION THE LD. AR RELIED UPON THE DECISION OF THE HONBLE BOMB AY HIGH COURT IN THE CASE OF CIT VS. EKBAL AND CO. [13 ITR 154 (BOM)] AND DEEPIKA A. MEHTA VS. ACIT [57 TT] 104 (MUM)]. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPON THE DECIS ION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF PR. CIT VS. MOHD. RIZWAN PROP M/S M.R. GARMENTS [ITA NO. 100 OF 2015] AND DECISION OF LUCKNOW TRIBUNAL IN UP HOUSING & DEVELO PMENT BOARD VS ACIT (50 TAXMAN.COM 214). 6 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI 4. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITTED THAT AN AMENDMENT HAS BEEN MADE IN SEC. 148 OF THE ACT BY F INANCE (NO. 2) ACT, 1996, WHEREIN THE MINIMUM TIME LIMIT O F 30 DAYS FOR FILING OF RETURN OF INCOME HAS BEEN RETROSPECTI VELY REMOVED W.E.F 01.04.1989. HOWEVER, THE SAID AMENDMENT WOULD NOT SAVE THE ASSESSMENT ORDER PRIOR TO THE DATE OF MAKING SU CH AMENDMENT. IN SUPPORT OF HIS CONTENTION THE LD. AR FOR THE ASSESS RELIED UPON THE DECISION OF THE ITAT, MUMBAI BENCH IN THE CASE OF ASHOK RAO & CO. VS. ACIT [ITA NO. 5595 & 5596/BOM/1994] DATED 29.05.2002, WHEREIN IT WAS HEL D THAT AMENDMENT MADE TO SEC. 148 OF THE ACT OMITTING THE TIME LIMIT OF 30 DAYS WOULD NOT APPLY TO ASSESSMENT ORDER ALRE ADY PASSED BEFORE THE DATE OF AMENDMENT, MEANING THEREBY THAT SUCH AN AMENDMENT ORDER IS NOT SAVED. THE LD. AR ALSO RELI ED UPON THE DECISION IN ASSESSEES GROUP CASE I.E CIT VS. SUDHI R S. MEHTA [265 ITR 548]. 5. ON THE OTHER HAND THE LD. DR / SPECIAL COUNSEL FOR DEPARTMENT SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. THE LD. DR SUBMITS THAT ASSESSEE HAS NOT FILED RETURN OF INCOM E IN RESPONSE TO THE NOTICE U/S 142(1) OF THE IT ACT. T HE ASSESSEE NEITHER FILED THE RETURN OF INCOME U/S 139(1) OF TH E IT ACT WITHIN THE DUE DATE OR IN RESPONSE TO NOTICE U/S 142(1) OF THE IT ACT. THE ASSESSEE ALSO DID NOT FILE THE RETURN OF INCOME U/S 139(4), THE RETURN SHOULD HAVE FILED ON OR BEFORE 31.03.199 3. THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 11.11.19 93 WHICH 7 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI WAS A DEFECT RETURN; DEFECT IS THAT NO RETURN OF IN COME WAS FILED. AT THAT TIME NO PROCEEDINGS WERE PENDING AND ISSUE OF NOTICE U/S 148 IS VALID. THE LD. DR FURTHER SUBMITS THAT RELIANCE ON THE DECISION OF HONBLE ITAT, LUCKNOW BENCH IN THE CASE OF UP HOUSING & DEVELOPMENT BOARD VS. ACIT, IN THE SAID C ASE THE RETURN WAS FILED ON THE LAST WORKING DAY I.E 31.03. 2006 WHEN THE NOTICE U/S 148 OF THE IT ACT WAS ISSUED ON 30.0 3.2006, THUS THE FINDING IN THAT CASE WAS DIFFERENT. THE CASE O F CIT VS. MD. RIZWAN PROP M/S. MR GARMENTS (SUPRA) IS ALSO ON UND ER DIFFERENT FOOTING. ON CONTENTION OF THE LD. AR OF T HE ASSESSEE THAT NOTICE U/S 148 OF THE IT ACT SHOWS THAT THE AS SESSEE WAS ASKED TO FILE RETURN WITHIN 30 DAYS WHEN THE SECTIO N SAYS NOT LESS THAN 30 DAYS, THE LD. DR FURTHER SUBMITS THAT SECTION 148 WAS AMENDED BY THE FINANCE ACT, 1996 WITH RETROSPEC TIVE EFFECT FROM 01.04.1989, THEREFORE IN VIEW OF THE AMENDMENT THE SUBMISSIONS OF THE ASSESSEE THAT NOTICE OR THE ASSE SSMENT IS INVALID DOES NOT HAVE ANY LEGS TO STAND. THEREFORE , THE SUBMISSIONS ARE ALSO WITHOUT ANY MERIT. THE LD. DR FURTHER SUBMITTED THAT THE ASSESSEE NEVER RAISED THIS GROUN D OF APPEAL EARLIER. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE A LSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE A SSESSMENT WAS REOPENED BY ISSUING NOTICE U/S 147 OF THE ACT D ATED 20.05.1992. THE ASSESSEE HAS FILED HIS RETURN OF I NCOME ON 8 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI 11.11.1993 DECLARING TOTAL INCOME OF RS. 93,80,000/ -. THE RETURN WAS TREATED AS INVALID RETURN. PERUSAL OF T HE ASSESSMENT ORDER DOES NOT REVEAL THAT THE REASONS RECORDED WER E NOT SUPPLY TO THE ASSESSEE. BEFORE THE LD. CIT(A) THE ASSESSE E OBJECTED THAT THE ASSESSEE IS NOT PROVIDED REASONS RECORDED AND THAT THE ASSESSEE WAS ASKED TO FILE THE RETURN OF INCOME WIT HIN 30 DAYS WHICH IS INVALID AND BAD IN LAW. THE LD. CIT(A) TO OK HIS VIEW (PARA 6.2 OF IMPUGNED ORDER) THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME NEITHER HAS MADE ANY REQUEST FOR R EASONS RECORDED. 7. THE PROVISIONS OF SEC. 148 OF THE ACT HAVE BEEN AME NDED BY FINANCE ACT, 1996 WITH RETROSPECTIVE EFFECT FROM 01 .04.1989, WHEREBY THE EXPRESSION NOT BEING LESS THAN THIRTY DAYS HAS BEEN OMITTED. AS PER THE CIT(A), DUE TO THE AMENDME NT THE CONTENTION OF THE ASSESSEE THAT A.O HAD GIVEN LESS THAN THE PRESCRIBED TIME TO FILE THE RETURN HAS NO LEGS TO S TAND. THUS THE LD. CIT(A) REJECTED THE CONTENTION OF ASSESSEE ABOUT PROVIDING LESS THAN 30 DAYS TIME FOR FILING OF RETU RN IN RESPONSE TO THE NOTICE UNDER SECTION 148. 8. FOR APPRECIATION OF FACTS, WE MAY REFER THE LANGUAG E OF SEC. 148 OF THE ACT AT THE RELEVANT TIME ON THE STATUE BOOK : ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMEN T. 148(1). BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOM PUTATION UNDER SECTION 147, THE ASSESSING OFFICER SHALL SERVE ON T HE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, NOT B EING LESS THAN THIRTY DAYS, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE I S ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE R ELEVANT ASSESSMENT YEAR, 9 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS I F SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139] (2) THE ASSESSING OFFICER SHALL, BEFORE ISSUING ANY NOTICE UNDER THIS SECTION, RECORD HIS REASONS FOR DOING SO.] 9. OUR ATTENTION HAS BEEN DRAWN TO NOTICE ISSUED UNDER SECTION 148 OF THE ACT DATED 20.05.1992, INTERALIA CALLING UPON THE ASSESSEE TO FILE RETURN WITHIN 30 DAYS. THIS ACCORDING TO THE APPELLANT IS NOT THE SAME THING AS NOT BEING LESS THAN THIRTY D AYS. NO DOUBT THE EXPRESSION NOT BEING LESS THAN THIRTY DAYS HAS BEEN REMOVED W.E.F. 01.04.1989 RETROSPECTIVELY BY FINANCE ACT, 1 996. THE ASSESSMENT UNDER SECTION 143(3) RWS 147 OF THE ACT IN THIS CASE HAS BEEN COMPLETED ON 24/03/1994. THE CONTENTION OF THE ASSESSEE IS THAT THE AMENDMENT IN SECTION 148 WILL NOT SAVE THE ORDER ALREADY PASSED PRIOR TO SUCH AMENDMENT AS THE RE IS NO AMENDMENT VALIDATING THE ORDER PASSED IN PURSUANCE TO SUCH INVALID NOTICES EVEN IF IT IS TAKEN THE AMENDMENT S AVES THE NOTICE. 10. ON THIS ASPECT, THERE IS DIRECT DECISION OF OUR COO RDINATE BENCH IN ASHOK RAO & CO. VS ACIT (SUPRA). THE RELEVANT PA RT OF THE ORDER IS EXTRACTED BELOW: 8. BUT, THE POSITION HAS BECOME A LITTLE DIFFERENT BECAUSE OF THE AMENDMENT MADE TO SECTION 148(1) BY THE FINANCE NO. 2 ACT, 1995 WITH RETROSPECTIVE EFFECT FROM 1.4.1989. BY THIS AM ENDMENT THE WORDS 'NOT BEING LESS THAN 30 DAYS HAVE BEEN OMITTE D FROM THE SUB SECTION WITH RETROSPECTIVE EFFECT. APPARENTLY, THE ATTEMPT OF THE LEGISLATURE IS TO VALIDATE THE NOTICES ISSUED U /S. 148(1) WHERE THE ASSESSEE WERE GIVEN TIME OF LESS THAN 30DAYS TO FILE THE 10 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI RETURNS. THE CONTENTION OF THE LD. REPRESENTATIVE F OR THE ASSESSEE HOWEVER IS THAT THE AMENDMENT MAY VALIDATE THE NOTI CES WHICH PAVE LESS THAN 30 DAYS TIME TO THE ASSESSES TO FILE THE RETURNS, BUT CANNOT VALIDATE THE REASSESSMENTS MADE IN THE M EANTIME PURSUANT TO THE DEFECTIVE NOTICES. IN OTHER WORDS, HIS CONTENTION IS THAT THE REASSESSMENTS MADE ON 2.11.1993 FOR BOTH T HE4SESSMENT YEARS UNDER APPEAL ARE NULL AND VOID BECAUSE OF THE DEFECTIVE NOTICES AND HAVE NOT BEEN VALIDATED BY ANY VALIDATI NG AMENDMENT AND THE MERE VALIDATION OF THE NOTICES CA NNOT HAVE THE EFFECT OF VALIDATING THE REASSESSMENTS ALSO . TO FURTHER ELABORATE, WHAT HE SAYS IS THAT THE ASSESSEE HAS OBTAINED A VE STED RIGHT BECAUSE OF THE VALIDITY OF THE REASSESSMENTS AND SU CH VESTED RIGHT CANNOT BE TAKEN AWAY? MERELY VALIDATING THE N OTICES PURSUANT TO WHICH THEY WERE MADE. THERE HAS TO BE, ACCORDING TO THE LD. REPRESENTATIVE FOR THE ASSESSEE AN AMENDMEN T EXPRESSLY VALIDATING THE REASSESSMENTS ALSO. 9.IN SUPPORT OF THE ABOVE CONTENTIONS, THE LD. REPR ESENTATIVE FOR THE ASSESSES CITED THE FOLLOWING THREE JUDGMENTS:- (1) PRITHVI COTTON MILLS V. BROACH BURROUGH MUNICIP ALITY L & ORS [79 ITR 136 (SC)]. (2) JOSE DACOSTS V. BASCORA SADASHIV SINALNARCOMIN AIR (1975) SC 1843. (3) DELHI CLOTH & GENERAL MILLS CO. LTD. V INCOME T AX COMMISSIONER, AIR 1927 (P7)242 IN DELHI CLOTH MILLS CASE (SUPRA), THE FOLLOWING OB SERVATIONS WERE MADE BY THE PRIVY COUNCIL. THE PRINCIPLE WHICH THEIR LORDSHIP MUST APPLY IN D EALING WITH THIS MATTER HAS BEEN AUTHORITATIVELY ENUNCIATED BY THE BOARD IN THE COLONIAL SUGAR REFINING CO V. IRVING (1995) A. C. 369=74 LJ.P.C. 77=21 T.L.R. 513 = 92 L. T 738]. WHERE IN E FFECT IT IS LAID DOWN THAT WHILE PROVISIONS OF A STATUTE DEALING MER ELY WITH MATTERS OF PROCEDURE MAY PROPERLY, UNLESS THAT CONS TRUCTION TO BE TEXTUALLY INADMISSIBLE, HAVE RETROSPECTIVE EFFECT A TTRIBUTED TO THEM PROVISIONS WHICH TOUCH A RIGHT IN EXISTENCE AT THE PASSING OF THE STATUTE ARE NOT TO BE APPLIED RETROSPECTIVELY IN TH E, WOULD DEPRIVE OF THEIR EXISTING FINALITY ORDERS, WHICH WHEN THE S TATUE CAME INTO FORCE, WERE FINAL ARE PROVISIONS WHICH TOUCH EXISTI NG RIGHTS. ACCORDINGLY, IF THE SECTION NOW IN QUESTION IS TO A PPLY TO ORDERS FINAL AT THE DATE WHEN IT CAME INTO FORCE, IT MUST BE CLEARLY SO 11 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI PROVIDED. THEIR LORDSHIPS CANNOT FIND IN THE SECTI ON EVEN AN INDICATION TO THE EFFECT (UNDERLINING OURS) THESE OBSERVATIONS WERE QUOTED WITH APPROVAL BY THE SUPREME COURT IN THE CASE OF JOSE DACOSTA (SUPRA). IN PRITH VI COTTON MILLS CASE (SUPRA) A FIVE JUDGE BENCH HEADED BY HONBLE C HIEF JUSTICE M. HIDAYATULLAH, MADE CERTAIN GENERAL OBSERVATIONS ABOUT VALIDATING TAX STATUES. THE FIRST CONDITION LAID DO WN WAS THAT THE LEGISLATURE MUST POSSESS THE POWER TO IMPOSE THE TA X. THE SECOND CONDITION WAS THAT GRANTED LEGISLATIVE COMPETENCE, IT IS NOT SUFFICIENT TO DECLARE MERELY THAT THE DECISION OF T HE COURT SHALL NOT BIND, FOR THAT IS TANTAMOUNT TO REVERSING THE DECIS ION IN EXERCISE OF JUDICIAL POWER WHICH THE LEGISLATURE DOES NOT PO SSESS OR EXERCISE THE SUPREME COURT PROCEEDED TO OBSERVE THA T VALIDATION OF A TAX CAN BE DONE ONLY IF THE GROUNDS OF ILLEGAL ITY OR INVALIDITY ARE CAPABLE OF BEING REMOVED AND ARE IN FACT REMOVE D AND THE TAX THUS MADE LEGAL. THE SUPREME COURT RECOGNIZED THE V ARIOUS METHODS BY WHICH THIS CAN BE DONE, IT OBSERVED THUS .SOMETIME THIS IS DONE BY PROVIDING FOR JURISDICTION WHERE JU RISDICTION HAD NOT BEEN PROPERLY INVESTED BEFORE. SOMETIMES THIS I S DONE BY RE- ENACTING RETROSPECTIVELY A VALID AND LEGAL TAXING P ROVISION AND THEN BY FICTION MAKING THE TAX ALREADY COLLECTED TO STAND UNDER THE RE-ENACTED LAW. SOMETIMES THE LEGISLATURE GIVES ITS OWN MEANING AND INTERPRETATION OF THE LAW UNDER WHICH T HE TAX WAS COLLECTED AND BY LEGISLATIVE FLAT MAKES THE NEW MEA NING BINDING UPON COURTS. THE LEGISLATURE MAY FOLLOW ANY ONE MET HOD OR ALL OF THEM AND WHILE IT DOES SO IT MAY NEUTRALIZE THE EFF ECT OF THE EARLIER DECISION OF THE COURT WHICH BECOMES INEFFEC TIVE AFTER THE CHANGE OF THE LAW. WHICHEVER METHOD IS ADOPTED IT M UST BE WITHIN THE COMPETENCE OF THE LEGISLATURE AND LEGAL AND ADE QUATE TO ATTAIN THE OBJECT OF VALIDATION. IF THE LEGISLATURE HAS TH E POWER OVER THE SUBJECT- MATTER AND COMPETENCE TO MAKE A VALID LAW, IT CAN AT ANY TIME MAKE SUCH A VALID LAW AND MAKE IT RETROSPECTIV ELY SO AS TO BIND EVEN PAST TRANSACTIONS, THE VALIDITY OF A VALI DATING LAW, THEREFORE, DEPENDS UPON WHETHER THE LEGISLATURE POS SESSES THE COMPETENCE WHICH IT CLAIMS OVER THE SUBJECT-MATTER AND WHETHER IT MAKING THE VALIDATION IT REMOVES THE DEFECT WHICH T HE COURTS HAD FOUND IN THE EXISTING LAW AND MAKES ADEQUATE PROVIS IONS IN THE VALIDATING LAW FOR A VALID IMPOSITION OF THE TAX'. 12 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI THESE OBSERVATIONS SHOW THAT THE DEFECT WHICH MADE THE IMPOSITION OF TAX ILLEGAL MUST BE REMOVED EFFECTIVE LY. THE QUESTION BEFORE US IS WHETHER THIS HAS BEEN DONE IN THE PRES ENT CASE BY MERELY VALIDATING THE NOTICES. IF THE EARLIER LAW L AID DOWN BY THE COURTS WAS THAT THE INVALID NOTICES INVALIDATE THE REASSESSMENT PROCEEDINGS ALSO, IT WOULD FIRST APPEAR THAT BY MER ELY VALIDATING THE NOTICES, THE REASSESSMENTS WOULD ALSO BE VALIDA TED AUTOMATICALLY. HOWEVER, WE HAVE TO REMEMBER, AS LAI D DOWN BY THE PRIVY COUNCIL (SUPRA), THAT IT MUST BE CLEARLY PROVIDED THAT THE AMENDING LAW WOULD DISTURB OR TAKE AWAY THE FINALIT Y ATTAINED BY THE ORDERS OR THE VESTED RIGHTS OF THE ASSESSEE. WH EN THE REASSESSMENTS IN THE PRESENT CASE MADE ON 2.11.93 B ECAME NULL AND VOID FOR WANT OF PROPER NOTICES, THE ASSESSEE A CQUIRED A VESTED RIGHT THAT NO TAX WOULD BE COLLECTED PURSUAN T TO THEM. IF THE LEGISLATURE WANTS TO EFFECTUATE THOSE REASSESSM ENT ORDERS BY INJECTING LIFE TO THEM, THERE MUST BE A CLEAR PROVI SION TO THAT EFFECT IN THE AMENDING LAW OR NECESSARY INTENDMENT, IT IS COMMON GROUND THAT THERE IS NO C/EAR PROVISION IN THE AMEN DING LAW TO THE EFFECT THAT THE REASSESSMENTS MADE PURSUANT TO DEFE CTIVE NOTICES SHALL NOT BE CONSIDERED TO BE NULL AND VOID AND THE ASSESSEE 'S IN WHOSE CASES SUCH REASSESSMENTS HAD BEEN MADE WOULD NEVERTHELESS BE LIABLE TO PAY TAX PURSUANT THERETO. THUS, THERE ARE NO EXPRESS WORDS IN THE AMENDMENT TAKING AWAY THE V ESTED RIGHT OF THE ASSESSEE THAT NO TAX WILL BE COLLECTED FROM HIM PURSUANT TO THOSE REASSESSMENTS. THE QUESTION HOWEVER WOULD BE WHETHER THERE IS NECESSARY INTENDMENT - AN INTENDMENT TO TH E EFFECT THAT SINCE THE NOTICES AM BEING VALIDATED, THE INTENTION IS ALSO TO VALIDATE THE REASSESSMENTS. WE ARE UNABLE TO SPELL OUT ANY NECESSARY INTENDMENT, IT MAY BE THAT THE LEGISLATUR E DID NOT WANT TO DISTURB THE REASSESSMENTS ALREADY MADE PURSUANT TO THE DEFECTIVE NOTICES AND WANTED TO SAVE THEM FROM CHAL LENGE ONLY WHERE THE REASSESSMENT PROCEEDINGS WERE PENDING. TH E CIRCULAR NO 752 DATED 182.1998 (REPORTED AT PAGE 5228 OF VOL UME LIT) OF THE 5 EDITION OF CHATURVEDI & PITHISARIAS INCOME-T AX LAW IS AS UNDER: 'MODIFICATIONS OF PROVISIONS OF SECTION 148 - 481. UNDER THE EXISTING PROVISIONS OF THE INCOME-TAX ACT, IN CASES WHERE THE ASSESSING OFFICER HAS REASON TO BE//EVE THAT INCOME HAS ESCAPED ASSESSMENT, A NOTICE CAN BE ISSUED TO AN ASSESSEE F OR FILING A 13 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI RETURN OF HIS INCOME WITHIN A SPECIFIED PERIOD, NOT BEING LESS THAN THIRTY DAYS. IN THE NOTICE U/S. 148, THE ASSESSEE W AS REQUIRED TO FURNISH A RETURN OF HIS INCOME WITHIN THIRTY DAYS. THE ABOVE POSITION IN LAW WAS IN EFFECT FROM APRIL 1, 1989. 48.2 NOTICES ISSUED UNDER SECTION 148 HAVE BEEN HEL D TO BE INVALID BY THE INCOME TAX APPELLATE TRIBUNAL ON THE GROUND THAT WHEREAS THE STATUTE ALLOWS THE TAX PAYER A TIME, 'N OT BEING LESS THAN 30 DAYS THE NOTICE GIVES THE DIRECTION TO FILE A RETURN 'WITHIN A PERIOD 0130 DAYS'. THE BOMBAY HIGH COURT IN THE C ASE OF CIT V. EKBAL AND CO. [19451 13 ITR 154, DECIDED A SIMILAR ISSUE BY LAYING DOWN THAT THE EXPRESSIONS WITHIN THIRTY DAYS ' AND 'NOT LESS THAN THIRTY DAYS AM TWO QUITE DIFFERENT THINGS. IN VIEW OF THE AFORESAID DECISIONS OF THE BOMBAY HIGH COURT AND AL SO OF THE INCOME TAX APPELLATE TRIBUNAL, THE FINANCE (NO.2) A CT 1996, PROVIDES IN SECTION 148 THAT THE ASSESSING OFFICER MAY REQUIRE THE ASSESSEE TO FURNISH THE RETURN WITHIN THE PERIOD SP ECIFIED IN THE NOTICE. 48.3 THE AMENDMENT WILL TAKE EFFECT RETROSPECTIVELY FROM APRIL 1, 1989, AND WILL, ACCORDINGLY, APPLY IN RELATION TO N OTICES ISSUED UNDER SECTION 148 ON OR AFTER THAT DATE (SECTION 43 ). THERE IS NOTHING IN THE CIRCULAR TO SHOW THAT THE A MENDMENT VALIDATING THE NOTICES ISSUED AFTER 01.04.1989 WAS ALSO INTENDED TO VALIDATE THE REASSESSMENTS ALREADY MADE PURSUANT TO THOSE DEFECTIVE NOTICES. 10. THERE IS ONE MORE REASON WHY WE ARE UNABLE TO S PELL OUT ANY INTENTION ON THE PART OF THE LEGISLATURE TO VALIDAT E THE REASSESSMENTS THEMSELVES. SECTION 153(2) PRESCRIBES A TIME LIMIT OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE U/S. 148 WAS SERVED AS THE LIMITATION FOR A REASSES SMENT U/S. 147. THE AMENDMENT TO SECTION 148(1) WAS MADE IN199 6 WITH RETROSPECTIVE EFFECT FROM 1.4.1989. MANY ASSESSING OFFICERS WOULD HAVE ISSUED NOTICES U/S. 148 AFTER THIS DATE CONTAI NING THE DEFECT (GIVING A PERIOD OF LESS THAN 30 DAYS FOR TILING TH E RETURN). IT WOULD APPEAR THAT THE NEW TIME LIMIT GIVEN IN SECTI ON 148(1) AS INTRODUCED WET 1.4.1989 WAS OVERLOOKED BY THE ASSES SING OFFICERS WHO WERE APPARENTLY GUIDED BY THE TIME LIM IT PRESCRIBED BY SECTION 139(2), WHICH WAS INCORPORATED IN THE OR IGINAL SECTION 14 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI 148(1). THEREFORE, IT WOULD BE A REASONABLE INFERE NCE THAT MANY NOTICES WOULD HAVE BEEN ISSUED ON OR AFTER 14.1989 DIRECTING THE ASSESSEE TO FILE RETURNS WITHIN 30DAYS. IN MANY SUC H CASES, THE REASSESSMENT WOULD HAVE ALSO BEEN COMPLETED LONG BE FORE THE RETROSPECTIVE AMENDMENT BROUGHT BY THE FINANCE (NO. 2) ACT, 1996. IN MANY CASES, APPEALS MIGHT HAVE BEEN PENDING AGAI NST SUCH REASSESSMENTS CHALLENGING THEM ON THE GROUND THAT T HEY WERE MADE PURSUANT TO DEFECTIVE NOTICES. THE LEGISLATURE MUST BE TAKEN TO BE AWARE OF THIS POSITION AND THAT IS WHY THEY B ROUGHT THE AMENDMENT. NEVERTHELESS THE AMENDMENT WAS CONFINED ONLY TO THE VALIDATION OF THE NOTICES ISSUED WITHOUT VALIDA TING THE REASSESSMENTS ALSO. IT IS QUITE USUAL AND COMMON FO R ANY SUCH VALIDATING ACT TO PROVIDE THAT NO REASSESSMENT MADE PURSUANT TO THE DEFECTIVE NOTICES SHALL BE CALLED IN QUESTION B Y WAY OF APPEAL TO ANY INCOME-TAX AUTHORITY OR TRIBUNAL OR IN ANY W ILT PROCEEDINGS BEFORE THE HIGH COURT. IT IS ALSO USUAL TO PROVIDE THAT THE TAX COLLECTED PURSUANT TO SUCH REASSESSMENTS MUST BE DE EMED TO HAVE BEEN VALIDLY ASSESSED, IMPOSED OR RECOVERED. THESE ARE THE USUAL FORMS BY WHICH THE ASSESSMENTS TO TAX ARE VALIDATED AND THIS IS NOT UNKNOWN TO THE LEGISLATURE. THEREFORE, IT WOULD APPEAR TO US, THAT THE LEGISLATURE DID NOT WANT TO INJECT LIFE OR VALIDATE THOSE REASSESSMENTS WHICH HAVE ALREADY BEEN MADE PURSUANT TO THE DEFECTIVE NOTICES AND WANTED TO SAVE ONLY THE PENDI NG REASSESSMENT PROCEEDINGS FROM CHALLENGE. THERE WAS NOTHING TO PREVENT THE LEGISLATURE FROM EXPRESSLY ENACTING, TO GETHER WITH THE RETROSPECTIVE AMENDMENT TO SECTION 148(1), THAT ALL THE REASSESSMENT PROCEEDINGS, WHETHER PENDING OR COMPLE TED SHALL BE DEEMED TO HAVE BEEN VALIDLY INITIATED AND COMPLETED . IN THE ABSENCE OF SUCH EXPRESS INTENDMENT. THE VESTED RIGH T ACCRUING TO THE ASSESSEE BECAUSE OF AN INVALID REASSESSMENT CAN NOT BE TAKEN AWAY. 11. IN THIS VIEW OF THE MATTER, WE HOLD THAT THE RE TROSPECTIVE AMENDMENT TO SECTION 148(1) MADE BY THE FINANCE (NO 2). ACT, 1996 DOES NOT SAVE THE REASSESSMENTS 1MM BEING DECL ARED NULL AND VOID.' 11. FURTHER THE COORDINATE BENCH OF THIS TRIBUNAL IN TH E CASE OF SHRI LALIT SHETH VS. ACIT AND VICE VERSA [ITA NO. 7394/MUM/1996] WHEREIN THE SIMILAR FACTS OF THE CAS E, HELD 15 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI THAT IN ABSENCE OF ANY EXPRESS INDICATION IN THE AM ENDING ACT, THE MERE VALIDATION OF NOTICE CANNOT VALIDATE THE R EASSESSMENT ORDER PASSED BEFORE THE DATE OF SUCH AMENDMENT IN A BSENCE OF ANY EXPRESS OR IMPLIED INTENTION OF THE LEGISLATURE . THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI LALIT SHETH VS. ACIT (SUPRA) HAS ALSO BEEN AFFIRMED BY THE HONBLE BOMBAY HIGH C OURT IN ITA NO. 1570 OF 2005 DATED 29.09.2017. 12. WE HAVE ALSO NOTICED THAT THE JURISDICTIONAL HI GH COURT IN ASSESSEES GROUP CASE (BROTHER CASE) IN CIT VS SUD HIR S. MEHTA [265 ITR 548] HELD THAT THE NOTICE U/S 148 OF THE A CT GIVING LESS THAN 30 DAYS TIME IS INVALID. IN THIS CASE THE TRIB UNAL HELD THAT THERE WAS NO AMENDMENT IN SECTION 148 AT THE TIME O F PASSING OF THE ORDER DATED 26.06.1996 AND DISMISSED THE APP LICATION OF THE DEPARTMENT. AGAINST THAT ORDER THE REVENUE FILE D APPEAL BEFORE HONBLE BOMBAY HIGH COURT RAISING THE FOLLOW ING QUESTION OF LOW; WHETHER THE TAXATION LAWS (AMENDMENT) ACT, 1996, A PPLIED ONLY TO PENDING PROCEEDINGS OR WHETHER IT APPLIED EVEN TO PROCEEDIN GS WHICH STOOD COMPLETED THREE MONTHS PRIOR TO THE LAW BEING ENACTED? THE HONBLE HIGH COURT PASSED THE FOLLOWING ORDER; 4. IN THE PRESENT CASE, THE SHORT POINT WHICH ARISES FOR CONSIDERATION IS WHETHER MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT W AS MAINTAINABLE UNDER SECTION 254(2) OF THE IT ACT WHICH STATES THAT MIST AKE APPARENT FROM THE RECORD CAN BE RECTIFIED BY THE TRIBUNAL WITHIN FOUR YEARS FROM THE DATE OF ITS ORDER. IN THIS CASE, THE REASSESSMENT PROCEEDINGS WERE INITIA TED VIDE NOTICE DATED 7TH NOV., 1990. UNDER THE PROVISIONS WHICH EXISTED ON T HAT DATE, IT WAS PROVIDED UNDER SECTION 148(1) THAT IN CASES WHERE THE ASSESS ING OFFICER HAD REASON TO 16 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT A NOTICE HAD TO BE ISSUED TO AN ASSESSEE FOR FILING RETURN OF INCOME WITHIN A SPECI FIED PERIOD, NOT BEING LESS THAN THIRTY DAYS . THE (ITALICISED IN PORTION) BECAME SUBJECT-MATTER OF DISPUTE IN PROCEEDINGS PENDING BEFORE VARIOUS HIGH COURTS. IN CERTAIN CASES THESE NOTICES WERE HELD TO BE INVALID ON THE GROUND THAT WHERE TH E ACT ALLOWS THE ASSESSEE TIME TO FILE REVISED RETURNS WITHIN A STIPULATED PE RIOD UNDER THE ACT, IT WAS NOT OPEN TO THE ASSESSING OFFICER TO CALL UPON THE ASSE SSEE TO FILE THE RETURNS WITHIN THIRTY DAYS - CIT V. EKBAL & CO. [1945] 13 ITR 154 (BOM.). IN VIEW OF THESE CONFLICTING DECISIONS, THE LEGISLATURE BY VIRTUE OF TAXATION LAWS (AMENDMENT) ACT, 1996, DELETED THE ABOVE EXPRESSION 'NOT BEING LESS THAN THIRTY DAYS'. HOWEVER, THE TAXATION LAW (AMENDMENT) ACT OF 1996 G OT THE PRESIDENTIAL ASSENT ON 28TH SEPT., 1996. NO DOUBT, THE AMENDING ACT OPERATED W.E.F. 1ST APRIL, 1989. HOWEVER, THE AMENDING ACT GOT THE PRES IDENTIAL ASSENT ONLY ON 28TH SEPT., 1996, BY WHICH TIME THE ENTIRE, GAMUT O F REASSESSMENT PROCEEDINGS, IN THIS CASE, GOT CONCLUDED BEFORE THE TRIBUNAL WHE N IT ALLOWED THE APPEAL OF THE ASSESSEE STRIKING DOWN INITIATION OF REASSESSME NT PROCEEDINGS UNDER THE THEN EXISTING LAW. THAT DECISION OF THE TRIBUNAL WA S DELIVERED ON 26TH JUNE, 1996, I.E., THREE MONTHS PRIOR TO THE AMENDING LAW RECEIVING T HE PRESIDENTIAL ASSENT. IN THE CIRCUMSTANCES, THE MISCELLANEOUS APP LICATION FILED BY THE DEPARTMENT WAS RIGHTLY REJECTED BY THE TRIBUNAL AS THERE WAS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUN AL DATED 26TH JUNE, 1996. 13. HENCE, FOLLOWING THE AFORESAID LEGAL POSITION, IT HAS TO BE HELD THAT THE ASSESSMENT ORDER DATED 24.03.1994IS INVALI D AS IT IS BASED ON A NOTICE ISUUED UNDER SECTION 148 DATED 20 .05.1992, WHICH WAS INVALID ON ACCOUNT OF THE THEN EXISTING L AW. THE SUBSEQUENT AMENDMENT IN SECTION 148 MAY VALIDATE TH E NOTICE, BUT, IT WOULD NOT SAVE THE ASSESSMENT ORDER FROM BE ING DECLARED NULL AND VOID, AS IT WAS PASSED PRIOR TO THE AMENDM ENT. 14. CONSIDERING OUR DECISION AS WE HAVE ALLOWED THE LEGAL GROUND AND HELD THE ASSESSMENT AS NULL AND VOID AS NOTICE U/S 148 OF 17 ITA NO. 8704/MUM/2011. SHRI ASHWIN S. MEHTA, MUMBAI THE IT ACT IS INVALID, THEREFORE, THE DISCUSSION ON MERIT OF THE CASE HAS BECOME ACADEMIC AND IS NOT BEING RENDERED. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH NOV, 2018. SD/- SD/- ( G.S.PANNU ) (PAWAN SINGH) VICE PRESIDENT JUDICIAL MEMBER MUMBAI; DATED 30/11/2018 KRK / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/