Sanjay Kumar Surana, Kolkata V. Pr.CIT-12, Kolkata, Kolkata

ITA 902/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0232 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-11-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHRI A K NAYAK CIT LD
• Assessee Lawyers: MANISH TIWARI F C A LD
• Keywords: Assessment record; Set aside
• Section: 142(1); 143(1); 292BB; 143(2); 139(1); 147; 148; 263

Judgement Text

1 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [BEFORE SHRI P.M. JAGTAP, V.P (KZ) & SHRI A. T. V ARKEY, JM ] I.TA NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA PAN: BKEPS 6707H VS. P.C.I.T-12, KOLKATA APPELLANT RESPONDENT DATE OF HEARING 27.11.2019 DATE OF PRONOUNCEMENT 31.12.2018 FOR THE APPELLANT SHRI MANISH TIWARI, FCA, LD.AR FOR THE RESPONDENT DR. (SHRI) A.K. NAYAK, CIT, LD. SR.DR ORDER PER SHRI A.T. VARKEY, JM THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. PR. CIT-12, KOLKATA DATED 26/03/2009 FOR THE ASSESSMENT YEAR 2009-10 PASSED U/S. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E AS UNDER:- 1. (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, ORDER U/S 263 DATED 26.03.2019 IS BAD IN LAW FOR THE REASON THAT THE PROCEEDINGS U/S 147 INITIATED ITSELF WAS BAD M LAW, THE ORDER U/S 143( 3)/147 DATED 27.12.2016 WAS NOT MAINTAINABLE IN LAW SINCE NO ASSESSMENT CAN BE MADE IN ABSENCE OF ANY NOTICE U/S 143(2). (B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER U/S 263 IS ALSO OTHERWISE BAD IN LAW FOR THE REASONS THAT NO A DDITION WAS MADE FOR THE REASONS RECORDED FOR REOPENING. OF THE ASSESSMENT U/S 147 AND AS SUCH NO OTHER ADDITION COULD HAVE BEEN MADE BY THE AO, THEREFORE THE PR. CIT CANNOT DIRECT THE AO TO ENQUIRE AND MAKE ADDITION. (C) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. PR. (IT IS WRONG AND UNJUSTIFIED IN TAKING JURISDICTION U/S 263 OVER A RE-ASSESSMENT ORDER U/S 143(3)/147 WHICH IS VOID AB-INITIO AND INVALID F OR AO'S FAILURE TO COMPLY WITH THE MANDATORY REQUIREMENTS U/S 147. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE VIEW TAKEN BY THE AO WAS A POSSIBLE VIEW AND JUST BECAUSE THE PR. C IT HAS A DIFFERENT VIEW, JURISDICTION U/S 263 OF THE ACT CANNOT BE INVOKED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. PR. CIT IS WRONG AND UNJUSTIFIED IN GIVING DIRECTIONS AGAIN U /S 263 TO AO FOR RE- 2 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA EXAMINATION AS A SECOND CHANCE ON EXACTLY THE SA ME ISSUE ALREADY CONSIDERED BY AO WHILE MAKING RE-ASSESSME NT U/S 147. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, ADDUCE OR AMEND ANY GROUND OR GROUNDS ON OR BEFORE THE DATE OF HEARI NG OF THE APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE AS SESSEE HAS FILED HIS R.O.I (RETURN OF INCOME) FOR THE A.Y 2009-10 ON 21-12-2009 DECLARING TOTAL I NCOME AT RS. 2,01,620/-. THE AO NOTES THE ASSESSEE HAS SHOWN HIS INCOME UNDER THE HEAD B USINESS. ACCORDING TO THE AO, HE HAS RE- OPENED THE ASSESSMENT FOR SCRUTINY ON THE BASIS OF AN INFORMATION RECEIVED FROM ADIT (INV.), U-3(4), KOLKATA THAT THE ASSESSEE HAD DEPOS ITED RS. 237.20 LAKH IN THE BANK ACCOUNTS MAINTAINED IN THE NAME OF HIS PROPRIETORSHIP CONC ERN, M/S. SANJAY TRADERS DURING THE FINANCIAL YEAR 2008-09 UNDER CONSIDERATION. ACCORDI NG TO THE AO, THERE IS NO REFLECTION OF BUSINESS IN THE RETURN FILED BY THE ASSESSEE. ACCOR DING TO AO, FROM THE PERUSAL OF RETURN OF INCOME FILED BY THE ASSESSEE IT IS SEEN THAT THE AS SESSEES INCOME ARISES OUT OF TRANSACTIONS PASSING THROUGH THE BANK ACCOUNTS IN THE NAME OF M /S. SANJAY TRADERS WHICH HAS REMAINED UNDISCLOSED. THEREFORE, HE REOPENED THE ASSESSME NT AND FOR DOING THAT HE ISSUED NOTICE U/S. 148 ON 21-03-2016 PROPOSING HIS DESIRE TO RE-OPEN T HE ASSESSMENT U/S. 147 OF THE ACT. THEREAFTER, THE AO RECORDS THAT REASONS TO REOPEN W AS DULY COMMUNICATED TO THE ASSESSEE AND NOTICE U/S. 142(1) DT. 21-11-2016 ALONG WITH QUESTI ONNAIRE WERE ISSUED; AND AFTER SERVING UPON THE ASSESSEE THE NOTICES, THE ASSESSEE REPLIED TO THE AO TO TREAT THE ORIGIN AL RETURN OF INCOME AS FILED IN RESPONSE TO 142(1) NOTICE ISSUED . THEREAFTER, THE AO AFTER SCRUTINISING THE ASSESSMENT OF THE ASSESSEE WAS PLEASED TO ACCEPT TH E RETURN OF INCOME AS FILED AND COMPLETED THE ASSESSMENT U/S. 143(3)/147 AS PER RE-ASSESSMENT ORDER DT. 27-12-2016. 4. THEREAFTER, THE LD. PCIT VIDE SHOW CAUSE NOTICE ISSUED U/S. 263 OF THE ACT DT. 05- 12-2018 PROPOSED TO EXERCISE HIS REVISIONAL JUR ISDICTION IN RESPECT OF ASSESSMENT ORDER DT. 27-12-2016. THEREAFTER, THE LD. PCIT BY THE IMPUGN ED ORDER PASSED U/S. 263 OF THE ACT HAS SET ASIDE THE ORDER OF AO DATED 27.12.2016, WITH A DIRECTION TO THE AO TO VERIFY THE FACTUAL AVERMENTS SUBMITTED BY THE LD. AR BEFORE HIM, WHICH ACTION OF LD. CIT HAS BEEN CHALLENGED BY THE ASSESSEE BEFORE US. 5. WE NOTE THAT THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST THE ACTION OF THE LD. PCIT IN ASSUMING/EXERCISING HIS JURISDICTION U/S. 263 OF THE ACT TO INTERFERE WITH THE ORDER OF THE AO PASSED U/S. 143(3)/147 OF THE ACT DT. 27-12-2016 , WHICH ACCORDING TO THE LD.AR OF THE ASSESSEE IS THAT THE SAID REASSESSMENT ORDER OF THE AO (DATED 27.12.2016) ITSELF IS BAD IN LAW FOR NON ISSUANCE OF MANDATORY NOTICE U/S. 143(2) O F THE ACT. THE LD.AR IN ORDER SUPPORT THE 3 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA AFORESAID LEGAL PROPOSITION CITED THE DECISION OF T HE HONBLE JURISDICTIONAL HIGH COURT OF CALCUTTA IN THE CASE OF PCIT V/S. OBEROI HOTELS P. LTD IN ITAT 152 OF 2015, GA NO. 3671 OF 2015 DT. 22-06-2018, WHEREIN THE HONBLE HIGH COURT HELD AS UNDER:- THE TWO SUBSTANTIAL QUESTIONS OF LAW ARE ANSWERED ACCORDINGLY AS FOLLOWS: (1) IF THE TIME FOR ISSUANCE OF THE NOTICE UNDER SECTIO N 143(2) OF THE ACT HAS EXPIRED OR THE TIME FOR COMPLETING THE REASSESSMENT PROCEED INGS UNDER SECTION 153(2) OF THE ACT HAS RUN OUT, THE FAILURE TO ISSUE SUCH NOTI CE UNDER SECTION 143(2) OF THE ACT WOULD RESULT IN THE ENTIRE PROCEEDINGS, INCLUDI NG ANY ORDER OF ASSESSMENT, TO BE QUASHED. (2) SECTION 292BB OF THE ACT DOES NOT DISPENSE WIT H THE ISSUANCE OF ANY NOTICE THAT IS MANDATED TO BE ISSUED UNDER THE ACT, BUT ME RELY CURES THE DEFECT OF SERVICE OF SUCH NOTICE IF AN OBJECTION IN SUCH REGA RD IS NOT TAKEN BEFORE THE COMPLETION OF THE ASSESSMENT OR REASSESSMENT. IN AD DITION, IT IS HELD THAT IN THE LIGHT OF THE SUPREME COURT DICTUM IN HOTEL BLUE MOO N, THE VIEW EXPRESSED IN HUMBOLDT WEDAG INDIA PVT. LTD IS PER INCURIAM AND, AS SUCH, NOT GOOD LAW. 6. ON MERITS OF THE CASE, THE LD. AR SUBMITTED THAT IT IS EVIDENT FROM FACTS OF THE CASE THAT DURING THE RE-ASSESSMENT PROCEEDINGS PURSUANT TO THE NOTICE ISSUED U/S. 142(1) OF THE ACT, THE ASSESSEE EXPLAINED BEFORE THE AO THAT BOTH THE BANK ACCOUNTS AS STATED IN THE REASONS RECORDED HAVE BEEN OWNED UP BY MR. PANKAJ JHAWAR ( PAN AEVPJ7732B) AND M/S. SULABH COMMODITIES PVT. LTD. (PAN AAKCS 8474Q) BEFORE THE ADIT (LNV) UNIT -3(4) AND CONSEQUENTLY THE INCOME IN THOSE ACCOUNTS HAVE BEE N DULY PAID BY THEM. IT WAS ALSO EXPLAINED BY THE ASSESSE BEFORE THE AO AND IT WAS U RGED BY THE ASSESSEE THAT THESE FACTS COULD BE VERIFIED FROM THE RESPECTIVE ASSESSMENT RECORDS OF MR. PANKAJ JHAWAR AND THAT OF M/S. SULABH COMMODITIES PVT. LTD. (SUPRA). IN THE SAID BACK DROP, THE ASSESSEE SUBMITTED THAT SINCE THESE ACCOUNTS WERE NEVER MAINTAINED OR OWNED BY ASSESSEE, THE QUESTION OF ESCAPEMENT OF INCOME DOES NOT ARISE. THE ASSESSEE H AD FILED BEFORE THE AO, THE DISCLOSURE PETITION FILED BY PANKAJ JHAWAR AND ASSESSMENT ORD ER OF SULABH COMMODITIES PVT. LTD. AND AFTER ENQUIRY ON THESE FACTS AND AFTER C ONSIDERING THE ABOVE EXPLANATION, THE AO TOOK A PLAUSIBLE VIEW AND DID NOT MAKE ANY ADDITION IN TH E HANDS OF THE ASSESSEE, WHICH CANNOT BE FAULTED, SINCE THE AO HAS DISCHARGED THE DUTIES OF AN INVESTIGATOR AND THAT OF THE ADJUDICATOR. AND SINCE THE AO HAS MADE ENQUIRY ON THE ISSUE, THE VIEW TAKEN BY THE AO CANNOT BE TAKEN AS UNSUSTAINABLE IN LAW, SINCE THE LD. PR. CIT DID NOT CARRY OUT ANY INDEPENDENT ENQUIRY TO SHOW THAT AOS ENQUIRY WAS MISDIRECTED ON WRONG ASS UMPTION OF FACTS. 7. AS NOTED EARLIER, WE NOTE THAT PURSUANT TO THE N OTICE ISSUED BY THE AO U/S. 142(1) OF THE ACT, THE ASSESSEE ANSWERED ALL THE 18 (EIGHTEEN ) QUESTIONS AND HAVE SUBMITTED ALL THE DOCUMENTS AND EXPLANATION TO THE QUESTIONS. THE AO AFTER CONDUCTING EXAMINATION OF THE 4 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA EVIDENCES/ EXPLANATIONS PASSED THE ORDER U/S. 143(3 )/147 DATED 27.12.2016, THEREFORE, THE ORDER PASSED BY THE AO CAN NEITHER BE HELD AS ERRON EOUS NOR PREJUDICIAL TO THE REVENUE AS DISCUSSED ABOVE. FOR THIS PURPOSE, WE RELY UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT-VS- J.L. MORRISION (INDIA) LTD. (2014) 366 ITR 593 (CAL.), THE RELEVANT PORTION OF WHICH ARE GIVEN BELOW 85. WHETHER THE ASSESSMENT ORDER DATED MARCH 28,2 008, WAS PASSED WITHOUT APPLICATION OF MIND IS BASICALLY A QUESTION OF FACT . THE LEARNED TRIBUNAL HAS HELD THAT THE ASSESSMENT ORDER WAS NOT PASSED WITHOUT APPLICA TION OF MIND. THE RECORDS OF THE ASSESSMENT INCLUDING THE ORDER- SHEETS GO TO SHOW T HAT APPROPRIATE ENQUIRY WAS MADE AND THE ASSESSEE WAS HEARD FROM TIME TO TIME. IN D ECIDING THE QUESTION, THE COURT HAS TO BEAR IN MIND THE PRESUMPTION IN LAW LAID DOWN I N SECTION 114 CLAUSE (E) OF THE EVIDENCE ACT THAT JUDICIAL AND OFFICIAL ACT HAVE BEEN REGULARLY PERFORMED.' 86. THEREFORE, THE COURT HAS TO START WITH THE PRES UMPTION THAT THE ASSESSMENT ORDER DATED MARCH 28, 2008, WAS REGULARLY PASSED. THERE I S EVIDENCE TO SHOW THAT THE ASSESSING OFFICER HAD REQUIRED THE ASSESSEE TO ANS WER 17 QUESTIONS AND TO FILE DOCUMENTS IN REGARD THERETO. IF THE A.O. CANNOT BE SHOWN TO HAVE VIOLATED ANY FORM PRESCRIBED FOR WRITING AN ASSESSMENT ORDER, IT WOU LD NOT BE CORRECT TO HOLD THAT HE ACTED ILLEGALLY OR WITHOUT APPLYING HIS MIND'. 8. FOR THE AFORESAID PROPOSITION ON MERITS, WE ALSO RELY UPON THE FOLLOWING JUDICIAL PRECEDENTS: A) HON'BLE SUPREME COURT IN THE CASE OF MALABAR IND USTRIES CO. LTD. VS. CIT REPORTED IN 243 ITR 83 (SC). B) HON'BLE DELHI HIGH COURT IN THE CASE OF CIT -VS- SUNBEAM AUTO LTD. REPORTED IN 332 ITR 167 (DEL). C) HON'BLE BOMBAY HIGH COURT IN THE CASE OF CLT -VS - GABRIEL INDIA LTD REPORTED IN 203 ITR 108 (BOM.). D) HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF HARI IRON TRADING CO. -VS- CIT REPORTED IN 263 ITR 437 (P&H). E) NON'BTE DELHI HIGH COURT IN THE CASE OF CIT -VS- LEISURE WEAR EXPORTS PVT. LTD. REPORTED IN 3411TR 166 (DEL). 9. PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTAT IVE VEHEMENTLY OPPOSED THE ARGUMENTS OF THE LD. AR AND IN SUPPORT OF THE IMPU GNED ORDER OF THE LD. PCIT, AND DOES NOT WANT US TO INTERFERE WITH THE ORDER OF THE LD. PR. CIT . COUNTERING THE LEGAL PROPOSITION MADE BY LD. AR THAT ISSUANCE OF NOTICE U/S. 143(2) OF TH E ACT IS NOT MANDATORY IN REOPENING 5 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA PROCEEDING U/S. 147/148 OF THE ACT, HE CITED THE DE CISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S. MADHYA BHARAT ENERGY CORPORATI ON LTD REPORTED IN (2011) 337 ITR 389 (DEL), WHEREIN IT WAS HELD THAT 143(2) NOTICE IS NO T REQUIRED IN 147/148 PROCEEDING AND THAT THE ASSESSEE CANNOT AGITATE NON-ISSUANCE OF NOTICE U/S. 143(2) BY AO IN COLLATERAL PROCEEDING OF LD. PR. CIT. SO, THE LD. DR DOES NOT WANT US TO INTERFERE IN THE IMPUGNED ORDER OF LD. PR. CIT. IN HIS REJOINDER, THE LD. AR SUBMITTED THAT TH E LEGAL ISSUE CAN BE RAISED BY THE ASSESSEE EVEN IN COLLATERAL PROCEEDINGS BECAUSE THE AOS REA SSESSMENT ORDER WHICH LD. PR. CIT HAS INTERFERED WITH ITSELF IS A NULLITY IN THE EYES OF LAW AND CAN VERY WELL BE CHALLENGED IN COLLATERAL PROCEEDINGS. ACCORDING TO LD. AR, SINCE THE ISSUE IS NO LONGER RES INTEGRA AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF OBERIO HOTEL (SUPRA), THE ORDER IS BINDING ON THIS TRIBUNAL AND ANY OTHER VIEW OF ANY OTHER HONBLE HIGH COURTS CANNOT COME IN THE WAY OF THE ASSESSEE, SINCE THE HONBLE CALCUTTA HIGH COURT IS IN CONSONANCE WITH THE RATIO LAID BY THE HONBLE SUPREME COURT IN ACIT -VS- HOTE L BLUE MOON 321 1TR 362 (SC). THEREFORE, HE WANTS US TO QUASH THE IMPUGNED ORDER OF THE LD. PR. CIT. 10. WE FIND THAT THE ASSESSEE HAD FILED RETURN OF INCOME ON 21-12-2009 DECLARING INCOME OF RS.2,01,620/- AND THEREAFTER, IT WAS PRO CESSED U/S. 143(1) OF THE ACT (REFER PAGES 26-28 OF PAPER BOOK) DT. 7-1-2011. THEREAFTER, THE AO REOPENED THE ASSESSMENT AFTER RECORDING REASONS, AND ISSUED NOTICE U/S. 148 DT. 21-03-2016 (REFER PAGE 18 OF PAPER BOOK) DIRECTING ASSESSEE TO FILE RETURN OF INCOME (ROI), PURSUANT TO WHICH ASSESSEE REPLIED VIDE LETTER DATED 06.04.2016 (REFER PAGE 20 OF PAPER BOO K) TO TREAT THE ORIGINAL ROI DATED 21.12.2009 AS COMPLIANCE TO THE NOTICE U/S. 148 OF THE ACT AND THEREAFTER GAVE A COPY OF REASONS RECORDED TO ASSESSEE ON 27.05.2016 THEREAFT ER, ISSUED NOTICE U/S. 142(1) DT. 21-11- 2016 (REFER TO PAGE 22 OF PAPER BOOK) PURSUANT TO W HICH ASSESSEE REPLIED VIDE LETTER DATED 24.1.2016 (REFER TO PAGES 24-25 OF PAPER BOOK) AND WITHOUT ISSUING NOTICE U/S. 143(2) OF THE ACT, THE AO COMPLETED THE ASSESSMENT WITHOUT MAKING ANY ADDITION, THOUGH ADMITTEDLY THE AO OPENED FOR REASONS THAT INCOME HAS ESCAPED ASSES SMENT IN RESPECT OF BANK DEPOSITS. 11. THUS, WE FIND THAT IN RESPONSE TO NOTICE U/S. 148 OF THE ACT, THE ASSESSEE HAD FILED A LETTER DATED 08/04/2016 WHEREIN HE REQUESTED THE A O TO TREAT THE ORIGINAL RETURN FILED DATED 21.12.2009 U/S. 139(1) AS RETURN U/S. 148 OF THE AC T. WE NOTE THAT THEREAFTER THE AO FAILED TO ISSUE ANY NOTICE U/S. 143(2) OF THE ACT TILL THE R EASSESSMENT ORDER WAS PASSED ON 27.03.2016. WE ARE OF THE OPINION THAT BEFORE THE REOPENED PROC EEDING CULMINATED IN THE FRAMING OF RE- ASSESSMENT IT WAS INCUMBENT UPON THE ASSESSING OFFI CER TO ISSUE NOTICE U/S. 143(2) OF THE ACT, 6 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA WHICH HE HAS FAILED TO DO, WHICH OMISSION GOES TO THE ROOT OF THE REASSESSMENT ORDER DATED 27.12.2016 AND THE CONSEQUENT REASSESSMENT ORDER B EING WITHOUT JURISDICTION IS VOID AND BAD IN LAW AND NULL IN THE EYES OF LAW. 12. FOR THIS VIEW OF OURS, WE RELY ON THE FOLLOWING JUDGMENTS:- ACIT -VS- HOTEL BLUE MOON 321 1TR 362(SC) CIT -VS- 1.5. LEATHER IN GA NO. 277 OF 2013 ITAT 2 7 OF 2013 DATED 04/04/2013. OBEROI HOTELS PVT. LTD. -VS- DCIT IN ITA NO. 472/K O1/2012 FOR A.Y. 2006-07 ALOK MITTAL VS. DCIT REPORTED IN 1671TD 325 [KOLKA TA ITAT] PCIT VS. OBEROI HOTEL PVT. LTD. (CAL) (SUPRA) 13. WE NOTE THAT THE RE-ASSESSMENT ORDER WAS THE P RIMARY PROCEEDING AND PROCEEDING INITIATED U/S. 263 OF THE ACT ARE COLLATERAL PROCEE DINGS AND THAT THIS TRIBUNAL HAS TAKEN THIS VIEW THAT THE VALIDITY OF INITIATION OF PRIMARY PRO CEEDING CAN BE EVEN CHALLENGED IN COLLATERAL / PROCEEDING IF THE PRIMARY PROCEEDING ITSELF CULMINA TED IN A VOID ORDER AND FOR THIS PROPOSITION, WE RELY ON THE DECISION OF KOLKATA TRIBUNAL IN M/S. CLASSIC FLOWER & FOOD PROCESSING PVT. LTD. VS. CIT ITA NO. 764-766/KOL/2014 DATED 05.04.2 017; AND THAT OF LUCKNOW BENCH OF ITAT IN THE CASE OF INDAR KUMAR BACHANI (HUF) VS. I TO REPORTED IN 99 ITD 621 AND DECISION OF ITAT MUMBAI 'G' BENCH IN THE CASE OF WE ST LIFE DEVELOPMENT LTD. VS. PCIT IN ITA NO. 688/MUM/2016. 14. WE ALSO TAKE NOTE OF THE RATIO LAID BY THE HON 'BLE SUPREME COURT IN THE CASE OF KIRAN SINGH & ORS., CHAMAN PASWAR & ORS (1955) 1 SC R 117 WHEREIN HON'BLE SUPREME COURT HAS OBSERVED AS FOLLOWS :- 'IT IS A FUNDAMENTAL PRINCIPLE TO ESTABLISH THE DEC REE PASSED BY A COURT WITHOUT JURISDICTION IS A NULLITY, AND THAT ITS INVALIDITY COULD BE SET OUT WHENEVER AND WHEREVER IT IS SOUGHT TO BE ENFORCED OR RELIED UPON , EVEN AT THE STAGE OF EXECUTION AND EVEN IN COLLATERAL PROCEEDINGS ARE DEFECT OF J URISDICTION WHETHER IT IS PECUNIARY OR TERRITORIAL, OR WHETHER IT IS IN RESPE CT OF THE SUBJECT MATTER OF THE ACTION, STRIKES AT THE VERY AUTHORITY OF THE COURT TO PASS ANY DECREE IN SUCH A DEFECT CANNOT BE CURED EVEN BY CONSENT OF THE PARTIES. 15. FROM THE AFORESAID DISCUSSION, WE ARE OF THE C ONSIDERED OPINION THAT THE RE- ASSESSMENT ORDER OF AO DATED 27.12.2016 WAS NOT VAL ID SINCE THE AO DIDNT ISSUE THE MANDATORY NOTICE U/S. 143(2) OF THE ACT BEFORE THE REASSESSMENT ORDER WAS PASSED. THE OMISSION TO ISSUE THE MANDATORY NOTICE U/S. 143(2) OF THE ACT HAS VITIATED THE REASSESSMENT 7 I.T.A NO. 902/KOL/2019 A.Y 2009-10 SANJAY KUMAR SURANA ORDER OF AO DATED 27.12.2016 AND IS NULLITY IN THE EYES OF LAW. SO, THE REVISIONAL ORDER PASSED BY THE LD. PR. CIT U/S. 263 OF THE ACT IN-RE SPECT OF REASSESSMENT ORDER OF AO DATED 27.12.2016 IS NULL IN THE EYES OF LAW. THEREFORE, THE APPEAL OF ASSESSEE IS ALLOWED. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST DECEMBER, 2019 SD/- SD/- P.M. JAGTAP A.T. VARKEY VICE-PRESIDENT JUDICIAL MEMB ER D ATED 31 -12-2019 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: SHRI SANJAY KUMAR SURANA 12 POL LOCK STREET, BAGRI MARKET, KOLKATA-700 001. 2 RESPONDENT/REVENUE: THE PRINCIPAL CIT-9, KOLKATA, A AYKAR BHAWAN POORVA, 110 SHANTI PALLY, KOLKATA-107. 3. CIT, 4. CIT(A), KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA