SANJAY BROTHERS, MUMBAI V. ASST CIT CEN CIR 18 & 19, MUMBAI

ITA 947/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87808 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-11-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 04-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Keywords: Question of law; Procedural lapse; Assessment record; Block assessment; Reason to believe
• Section: 143(3); 133A; 153A; 145; 148; 144; 15; 139

Judgement Text

, , ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI , .. , ! BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO.947/MUM/2013 ' ' ' ' #' #' #' #' / ASSESSMENT YEAR: 2010-11 M/S SANJAY BROTHERS, 106, SOPARIWALA ESTATE, 15-A, PRASAD CHAMBERS COMPOUND, 1 ST FLOOR, OPERA HOUSE, MUMBAI-400012 VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-18 & 19, MUMBAI ( '$% / ASSESSEE) ( & / REVENUE) P.A. NUMBER : AAKFS7609H '$% ' '' ' ( ( ( ( / ASSESSEE BY SHRI RAKESH JOSHI & ' '' ' ( ( ( ( /REVENUE BY : SHRI MANJUNATHA SWAMY CIT-DR ' %) / DATE OF HEARING : 18/12/2014 *+# ' %) / DATE OF PRONOUNCEMENT : 09/01/2015 , / O R D E R PER JOGINDER SINGH, JM: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 07/12/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 2 M/S SANJAY BROTHERS. I. THE LD. ASSESSING OFFICER HAS ERRED IN ADDING A SUM OF RS.11,12,85,695/- ON ACCOUNT OF ALLEGED UNEXPLAINED MONEY U/S.69A OF THE INCOME TAX ACT, 1961 FOR THE DIAMONDS NOT BELONGING TO THE APPELLANT FIRM WHICH WERE FOUND AND INVENTORISED WITHOUT CONSIDERING AND APPRECIATING THE FACTS & CIRCUMSTANCES OF THE CASE. II. THE LD. ASSESSING OFFICER HAS ERRED IN ADDING A SUM OF RS.2,77,51,909/- ON ACCOUNT OF ALLEGED DIFFERENTIAL SURPLUS/ INCOME ON ACCOUNT OF TRANSACTIONS INDULGED INTO ON TH E BASIS OF CERTAIN PAPERS FOUND AND SEIZED / IMPOUNDED AT THE TIME OF THE SEARCH /SURVEY ACTION WITHOUT CONSI DERING AND APPRECIATING THE FACTS & CIRCUMSTANCES OF THE C ASE. III. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR DELETE TH E SAID GROUND OF APPEAL. THE ASSESSEE HAS ALSO RAISED LEGAL GROUND/ADDITIONA L GROUND AS FOLLOWS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL A S IN LAW, THE LD. ASSESSING OFFICER AS WELL AS LD. COM MISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT APPRECIATIN G THE FACT THAT THERE WAS NO EFFECTIVE NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 AND ACCORDINGLY, ASSESSMENT ORDE R PASSED U/S 143(3) IS BAD IN LAW. 2. AT THE TIME OF HEARING, SHRI RAKESH JOSHI, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO NOTICE U/S143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS ISSUED TO THE A SSESSEE AFTER FILING OF RETURN OF INCOME, THEREFORE, THE ASSESSME NT IS VOID AB- INITIO. IT WAS PLEADED THAT AS PER PROVISIONS OF S ECTION 143(2) OF THE ACT, IF THE ASSESSING OFFICER FEELS THAT THERE ARE SOME POINTS IN THE RETURN OF INCOME, FILED BY THE ASSESSEE, HE MAY ISSUE NOTICE 3 M/S SANJAY BROTHERS. U/S 143(2) OF THE ACT TO VERIFY THE SAME. MEANING T HEREBY, NOTICE U/S 143(2) OF THE ACT CAN BE ISSUED ONLY AFTER FILI NG OF RETURN BY THE ASSESSEE. IT WAS POINTED OUT THAT IN THE PRESE NT APPEAL NOTICE U/S 143(2) OF THE ACT WAS ISSUED PRIOR TO FILING OF RETURN, THEREFORE, IT WAS NOT A VALID NOTICE ISSUED U/S 143(2) OF THE ACT, CONSEQUENTLY, THE ASSESSMENT WAS NOT VALID. OUR ATT ENTION WAS ALSO INVITED TO PAGES 1 AND 78 OF THE PAPER BOOK FI LED BY THE ASSESSEE. IN SUPPORT OF ITS CONTENTION THE LD. COUN SEL RELIED UPON THE FOLLOWING JUDICIAL PRONOUNCEMENTS:- A) ASST. CIT VS. HOTEL BLUE MOON, (321 ITR 362)(SC) B) ACIT VS. GENO PHARMA LTD. (84 CCH 117)(BOM) C) CIT VS CABON INDIA LTD. (347 ITR 583)(P & H) D) NAWAL KISHORE & SONS JEW. VS. CIT (79 DTR 241)(ALL) E) CIT VS MUKESH KUMAR AGRAWAL (345 ITR 29)(ALL) F) CIT VS BIHARILAL AGARWAL (346 ITR 67)(ALL) G) ALPINE ELECTRONIC ASIA PVT. LTD. VS DCIT (341 ITR 247)(DELHI) 2.1. THE BENCH ASKED THE LD. COUNSEL THAT WHETHER THIS ADDITIONAL GROUND/LEGAL GROUND WAS NOT RAISED BEFOR E THE REVENUE AUTHORITIES?, THE LD. COUNSEL ASSERTED THAT SINCE T HIS TECHNICAL GROUND/LEGAL GROUND GOES TO THE ROOT OF THE MATTER, THE SAME CAN BE AGITATED BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION FROM HONBLE APEX COURT IN THE CASE OF NTP C (229 ITR 383)(SC). IT WAS ALSO CONTENDED THAT MY LEGAL GROU ND MAY BE HEARD FIRST. 2.2. ON THE OTHER HAND, SHRI MANJUNATHA SWAMY, LD. CIT-DR CONTENDED THAT THIS LEGAL GROUND WAS NOT RAISED BEF ORE THE 4 M/S SANJAY BROTHERS. ASSESSING OFFICER/CIT(A), THEREFORE, IT MAY NOT BE ADMITTED. THE BENCH ASKED THE LD. CIT-DR TO EXPLAIN FROM THE ASSE SSMENT RECORD WHETHER NOTICE U/S143(2) OF THE ACT WAS ISSUED/SERV ED UPON THE ASSESSEE AFTER FILING OF RETURN OF INCOME. ON PERU SAL OF ASSESSMENT RECORD, IT WAS TOLD BY THE LD. CIT-DR THAT NO SUC H NOTICE IS AVAILABLE ON RECORD EVIDENCING THAT ANY NOTICE U/S 143(2) OF THE ACT WAS ISSUED/SERVED UPON THE ASSESSEE AFTER FILIN G OF RETURN. 2.3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF , ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM, IN THE BUSINESS OF TRADING AND EXPORT OF DIAMONDS, FILED ITS ORIGINAL RETURN SHOWI NG INCOME AT RS . 13,18,264/-. A SURVEY ACTION U/S 133A OF THE ACT W AS CARRIED OUT AT THE OFFICE PREMISES OF THE ASSESSEE ON 04/03 /2010 WHICH WAS CONVERTED INTO SEARCH. THE STATEMENT WAS RECOR DED U/S 132(4) OF THE ACT, WHEREIN NO UNDISCLOSED INCOME WA S ADMITTED. PURSUANT THERETO, ASSESSMENT WAS FRAMED U/S 143(3) R.W. SECTION 153A OF THE ACT, WHEREIN THE RETURN INCOME WAS ACCE PTED. THE ASSESSEE DID NOT DISCLOSE ANY UNDISCLOSED INCOME FO R ASSESSMENT YEARS 2004-05 TO 2009-10. IN ASSESSMENT YEAR 2010- 11, THE ASSESSEE FILED RETURN OF INCOME U/S 139(1) OF THE A CT ON 26/09/2010 DISCLOSING ADDITIONAL INCOME OF RS.39,29 ,046/- ON ACCOUNT OF UNACCOUNTED DIAMOND STOCK AND RS.10 LAKH ON ACCOUNT OF PROFIT EARNED ON SALES WHICH WERE NOT DE CLARED IN BOOKS OF ACCOUNTS. THE ASSESSING OFFICER ISSUED NOTICE U /S 143(2) OF THE ACT ON 17/09/2010 I.E. BEFORE THE FILING OF RETURN OF INCOME. LATER ON, NOTICE U/S 143(1) WAS ISSUED ON 20/06/2011. TH E ASSESSEE HAS CHALLENGED THE VALIDITY OF NOTICE ON THE GROUND THAT NO NOTICE 5 M/S SANJAY BROTHERS. U/S 143(2) OF THE ACT WAS ISSUED FOR THE IMPUGNED A SSESSMENT YEAR AFTER FILING OF RETURN BY THE ASSESSEE BY PLEA DING THAT THE ASSESSMENT SO FRAMED, WITHOUT ISSUANCE OF NOTICE U/ S 143(2) OF THE ACT IS VOID AB-INTIO . 2.4. WITHOUT GOING INTO MERITS OF THE CASE, WE PREF ER TO DISPOSE OF THE LEGAL GROUND, RAISED BY THE ASSESSEE, FIRST. S O FAR AS, RAISING THE ADDITIONAL GROUND, FOR THE FIRST TIME BEFORE TH IS TRIBUNAL, IS CONCERNED, IN VIEW OF THE DECISION FROM HONBLE APE X COURT IN 229 ITR 383 IN THE CASE OF NTPC, WHEREIN IT WAS HELD TH AT THE TRIBUNAL HAS JURISDICTION TO EXAMINE THE QUESTION OF LAW, RA ISED BEFORE IT, FOR THE FIRST TIME, AND THERE IS NO REASON WHY THE ASSE SSEE SHOULD BE PREVENTED FROM RAISING THAT QUESTION, THUS, THE ADD ITIONAL GROUND SO RAISED IS ADMITTED. 2.5. SINCE, THE TECHNICAL GROUND HAS BEEN ADMITTED, WE ARE EXPECTED TO EXAMINE THE VALIDITY OF NON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT, AFTER FILING THE RETURN BY THE A SSESSEE. WE ARE REPRODUCING HERE-UNDER THE RELEVANT PROVISION OF SU B-SECTION(2) OF SECTION 143 OF THE ACT FOR READY REFERENCE:- (2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTI ON 142, THE ASSESSING OFFICER SHALL, (I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM O F LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN TH E RETURN IS INADMISSIBLE, SERVE ON THE ASSESSEE A NOTICE SPECIF YING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCT ION, ALLOWANCE OR RELIEF AND REQUIRE HIM, ON A DATE TO B E SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDE NCE OR PARTICULARS SPECIFIED THEREIN OR ON WHICH THE ASSESS EE MAY RELY, IN SUPPORT OF SUCH CLAIM: [ PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY OF JUNE, 2003;] 6 M/S SANJAY BROTHERS. (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I ), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT T HE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EX CESSIVE LOSS OR HAS NOT UNDER-PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO B E SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR T O PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON W HICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: [ PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE EN D OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED.]] IF THE AFORESAID PROVISION OF THE ACT IS ANALYZED, IT SPEAKS ABOUT FILING OF RETURN U/S 139 OF THE AC BY THE ASS ESSEE. THEN IF, THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT AN Y CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN T HE RETURN IS INADMISSIBLE, IN THAT SITUATION, THE ASSESSING OFFI CER HAS TO SERVE A NOTICE U/S143(2) OF THE ACT SPECIFYING PARTICULARS OF SUCH ADMISSIBILITY AND IN SUCH NOTICE ON SPECIFIED DATE, THE ASSESSEE HAS TO PRODUCE THE PARTICULARS SPECIFIED FOR ITS/HI S CLAIM. THE PROVISO ADDED TO SUB-CLAUSE (1) TO SUB SECTION (2) TO SECTION 143 EXPLAINS THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON OR AFTER THE 1 ST DAY OF JUNE, 2003. THUS THE ASSESSING OFFICER SHO ULD ISSUE NOTICE U/S143(2) ONLY AFTER FILING THE RETURN OF INCOME BY THE ASSESSEE. IN THE PRESENT APPEAL, NO NOTICE U/S 143 (2) OF THE ACT WAS ISSUED/SERVED UPON THE ASSESSEE AFTER FILING OF RETURN U/S 139 OF THE ACT. THE LD. CIT-DR SPECIFICALLY ASKED, TO PROVE FROM THE ASSESSMENT RECORD, WHETHER ANY SUCH NOTICE WAS ISSU ED/SERVED UPON THE ASSESSEE AFTER FILING OF RETURN OF INCOME. THE LD. CIT-DR CONTENDED THAT FROM THE RECORD, NO SUCH NOTICE WAS ISSUED/SERVED UPON THE ASSESSEE. IN VIEW OF THIS FACTUAL MATRIX AND IN THE LIGHT 7 M/S SANJAY BROTHERS. OF THE DECISION FROM HONBLE APEX COURT IN ACIT VS HOTEL BLUE MOON (2010) 188 TAXMAN 113/321 ITR 362, THE ASSESSI NG OFFICER NECESSARILY HAS TO FOLLOW THE PROVISION OF SECTION 142(2) OF THE ACT. IN KRISHANCHAND VS IAC (1999) 103 TAXMAN 88 (J & K) , IT WAS HELD THAT IN ISSUING NOTICE U/S 143(2), FOR A PARTICULAR ASSESSMENT YEAR, THE ASSESSING OFFICER SHOULD BE SPECIFIC VIS--VIS AN AMOUNT WHICH WAS SUPPRESSED IN THAT PARTICULAR YEAR AND THE ASSE SSEE COULD NOT BE ASK TO EXPLAIN ON AMOUNT OF THIRTEEN YEARS BY CL UBBED TOGETHER BY CREATING A LIABILITY IN ONE SINGLE YEAR, MEANING THEREBY, ISSUANCE/SERVICE OF NOTICE AND MENTIONING THE REASO NS THEREIN IS A MANDATORY PROVISION. THE LD. CIT-DR ALSO ARGUED TH AT IT CAN BE CURED BY SECTION 292BB OF THE ACT. WE ARE NOT AGRE EING TO THIS PROPOSITION ALSO BECAUSE RESORT CANNOT BE HAD TO SE CTION 292BB TO VALIDATE MANDATORY REQUIREMENT OF SERVICE AS POSTUL ATED IN SECTION 143(2) OF THE ACT. OUR VIEW IS FORTIFIED BY THE DE CISION FROM HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS AVI- OIL INDIA PVT. LTD. (2010) 323 ITR 242 ( P & H). BY VIRTUE OF AME NDMENT BY THE FINANCE ACT 2008, WITH EFFECT FROM 01/04/2008, LIMI TATION U/S 143(2) STOOD EXTENDED UP TO SIX MONTH FROM THE END OF THE FINANCIAL YEAR IN WHICH RETURN WAS FURNISHED, IN RE SPECT OF ASSESSMENT YEAR 2007-08. PROVISO TO SECTION 143(2) APPLIES TO A RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 148 A ND, THEREFORE, WHERE ASSESSING OFFICER ISSUED NOTICE U/S 143(2) BE YOND A PERIOD OF ONE YEAR FROM THE DATE OF FILING OF RETURN IN RE SPONSE TO NOTICE U/S 148, SAID NOTICE WAS INVALID. OUR VIEW IS FORT IFIED BY THE RATIO LAID DOWN IN CIT VS ADARSH TRAVEL BUS SERVICE (2012 ) 17 TAXMAN.COM 140/204 TAXMAN 114 (MAG.)(ALL.), HONBLE 8 M/S SANJAY BROTHERS. JURISDICTIONAL HIGH COURT IN ACIT VS GENO PHARMACEU TICALS (2013) 84 CCH 117 (BOM.) AND NAWAL KISHORE & SONS JEWELLER S VS CIT (2012) 79 DTR 241 (ALL.). IN THE PRESENT APPEAL, AD MITTEDLY, NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED/SERVED UPON THE ASSESSEE, THEREFORE, IN VIEW OF THE MANDATORY REQUIREMENT, TH E ASSESSMENT SO FRAMED DESERVES TO BE ANNULLED. THE RATIO LAID DOWN, THOUGH ON THE ISSUE OF NOTICE AFTER THE PRESCRIBED LIMIT LAID DOWN IN THE PROVISION, THE ASSESSMENT WAS HELD TO BE NOT VALID BY HONBLE DELHI HIGH COURT IN VISHNU & COMPANY (SUPRA) BY FOL LOWING DECISION IN ANOTHER DECISION IN CIT VS PAWAN GUPTA (2009) 318 ITR 322 (DEL.). IN THE CELEBRATED CASE FROM HONBLE APEX COURT IN HOTEL BLUE MOON (SUPRA) THE HONBLE COUR HELD AS UN DER:- IF THE ASSESSING OFFICER, IF FOR ANY REASON, REPU DIATES THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 158 BC(A), THE ASSESSING OFFICER MUST NECESSARILY ISSUE NOTICE UND ER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO T O SECTION 143(2) OF THE ACT. BY MAKING THE ISSUE OF NOTICE MANDATORY, SECTION 15 8BC, DEALING WITH BLOCK ASSESSMENTS, MAKES SUCH NOTICE THE VERY FOUNDATION OF JURISDICTION. SUCH NOTICES REQUIRED TO BE SERVE D ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCOME. SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED, CLAUSE (B) OF SECTION 158BC PROVID ES THAT THE ASSESSING OFFICER SHALL TO DETERMINE THE UNDISCLOSE D INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158 BB AND THE PROVISIONS OF SECTION 142, SUB-SECTION (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS MAY B E, APPLY.' THIS INDICATES THAT THIS CLAUSE ENABLES THE ASSESSING OF FICER, AFTER THE RETURN IS FILED, TO COMPLETE THE ASSESSMENT UNDER S ECTION 143(2) BY FOLLOWNG THE PROCEDURE LIKE ISSUE OF NOTICE UNDER S ECTION 143(2)/142. 9 M/S SANJAY BROTHERS. THIS DOES NOT PROVIDE ACCEPTING THE RETURN AS PROVI DE DUNDER SECTION 143(1)(A) : THE OFFICER HAS TO COMPLETE THE ASSESSM ENT UNDER SECTION 143(3) ONLY. IF AN ASSESSMENT IS TO BE COMPLETED U NDER SECTION 143(3) READ WITH SECTION 158BC, NOTICE UNDER SECTION 143(2 ) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOC K RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOT ICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE. THEREFORE, THE REQUIREMENT OF N OTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. WHILE COMING TO THE AFORESAID CONCLUSION THE HONBL E APEX COURT AFFIRMED THE DECISION OF HONBLE GUWAHATI HIG H COURT AND ALSO HONBLE DELHI HIGH COURT IN CIT VS PAWAN GUPTA (2009) 31 ITR 322 BY ANALYZING ANOTHER DECISION IN MAGANLAL VS JAISWAL INDUSTRIES (1989) 4SCC 344(PARA -15), PRATAP SINGH (DR.) VS DIRECTOR OF ENFORCEMENT (1985) 155 ITR 166 (SC) (PA RAS 5, 15). THE HONBLE DELHI HIGH COURT IN CIT VS VISHNU & COMP. P VT. LTD. (2009) 319 ITR 151/(2010) 187 TAXMAN 316 (DEL.), HE LD THAT SECTION 143(2) OF THE ACT IS A MANDATORY PROVISION, WHETHER ONE LOOKS AT IT FROM THE STAND POINT OF A REGULAR ASSES SMENT OR FROM STAND POINT OF AN ASSESSMENT UNDER CHAPTER XIV-B OF THE ACT, THEREFORE, THE DECISION FROM HONBLE APEX COURT IN HOTEL BLUE MOON (SUPRA) SQUARELY APPLICABLE TO THE FACTS OF TH E PRESENT APPEAL. IT IS NOT A CASE OF ISSUANCE OF NOTICE BEY OND THE PRESCRIBED PERIOD RATHER NO NOTICE WAS ISSUED/SERVED UPON THE ASSESSEE AFTER FILING OF RETURN U/S 139 OF THE ACT, THEREFORE, THE CASE OF THE ASSESSEE IS ON MUCH STRONGER FOOTING, BECAUSE, ISSU ANCE/SERVICE OF NOTICE SECTION 143(2) OF THE ACT IS A MANDATORY REQ UIREMENT. IN APLINE ELECTRONICS ASIA PTE. LTD. VS DG. INCOME TAX (2012) 341 ITR 247 (DEL.) HELD THAT SERVICE OF NOTICE U/S 143(2) O F THE ACT IS A 10 M/S SANJAY BROTHERS. MANDATORY REQUIREMENT. LIKEWISE, IN CIT VS BIHARIL AL AGARWAL 346 ITR 67 (ALL.), WHEREIN, NOTICE U/S 143(2) OF THE AC T WAS NOT SERVED, THE HONBLE COURT HELD THAT THE ASSESSMENT IS NOT V ALID. IN THE CASE OF CIT VS CEBON INDIA LTD. 347 ITR 583 (P & H) , WHEREIN THERE WAS NO EVIDENCE TO SHOW THAT NOTICE U/S 143(2 ) OF THE ACT BEING SERVED WITHIN PRESCRIBED LIMIT AND IN THE ABS ENCE OF SUCH NOTICE, THE HONBLE HIGH COURT HELD THAT IT IS NOT CURABLE U/S 292BB OF THE ACT, THE ASSESSMENT WAS HELD TO BE VOI D. THE HONBLE COURT HELD AS UNDER:- HELD, DISMISSING THE APPEAL, THAT A CONCURRENT FINDING HAD BEEN RECORDED BY THE COMMISSIONER (APPE ALS) AND THE TRIBUNAL ON THE QUESTION OF DATE OF SERVICE OF NOTICE. THE NOTICE WAS NOT SERVED WITHIN THE STIPU LATED TIME. MERE GIVING OF DISPATCH NUMBER WOULD NOT REN DER THE FINDING PERVERSE. IN THE ABSENCE OF NOTICE BEI NG SERVED, THE ASSESSING OFFICER HAD NO JURISDICTION T O MAKE ASSESSMENT. ABSENCE OF NOTICE WAS NOT CURABLE UNDE R SECTION 292BB OF THE ACT. IDENTICAL RATIO WAS LAID DOWN IN CIT VS MUKESH K UMAR AGARWAL 345 ITR 29 (ALL.) BY HONBLE ALLAHABAD HIGH COURT BY HOLDING THAT VERY FOUNDATION OF THE JURISDICTION OF THE ASSESSING OFFICER IS ISSUANCE OF NOTICE U/S 143(2) OF THE ACT . THUS, IN VIEW OF THE FACTUAL MATRIX THAT NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED/SERVED UPON THE ASSESSEE, AFTER FILING OF RE TURN, THEREFORE, THE BASIC MANDATORY REQUIREMENT OF THE ACT, IS NOT FULFILLED, 11 M/S SANJAY BROTHERS. CONSEQUENTLY, THE DEFECT IS NOT CURABLE, THEREFORE, THE ASSESSMENT IS NOT VALID. 2.6. SINCE, WE HAVE ANNULLED THE ASSESSMENT, THEREF ORE, WE ARE REFRAINING OURSELVES TO GO INTO THE MERIT OF THE CA SE. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSI ON OF THE HEARING ON 18/12/2014. SD/- SD/- (B.R. BASKARAN) (JOGINDER S INGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED - 09/01/2015 F{X~{T? P.S/. . . , , , , ' '' ' -%. -%. -%. -%. /.#% /.#% /.#% /.#% / COPY OF THE ORDER FORWARDED TO : 1. 01 / THE APPELLANT 2. -201 / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- 4. 3 / CIT 5. .4 -% , , / DR, ITAT, MUMBAI 6. 45' 6 / GUARD FILE. , , , , / BY ORDER, 2.% -% //TRUE COPY// 7 77 7 / 8 8 8 8 & & & & (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI