TRAVANCORE DIAGNOSTICS PRIVATE LTD vs. THE ASSISTANT COMMISSIONER OF INCOME TAX,

The next submission advanced on behalf of the learned counsel for the petitioner is that the petitioner was not issued notice under Section 143(2) of the Act before proceeding to finalise the assessments under Section 143(3) read with Section 147 of the Act. The submission is that in the absence of valid notice under Section 143(2) of the Act, the subsequent proceedings and assessment orders passed under Section 143(3) read with Section 147 are in nullity and, therefore, are liable to be quashed. Learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax & Another v. Hotel Blue Moon [(2010) 3 SCC 259 : 321 ITR 362].

On the other hand, Sri.Christopher Abraham, learned Standing Counsel for the Income Tax Department, has raised objection with regard to maintainability of these writ petitions. He has stated that once the petitioner has challenged the assessment orders in appeals before the CIT(A) under Section 246 of the Act, there was no occasion for him to approach this Court challenging the very same assessment orders. It is further submitted that the petitioner had withdrawn the appeals without there being any order/direction from this Court to pursue the writ petitions. He, therefore, submits that these writ petitions are not maintainable and are liable to be dismissed.

Learned Standing Counsel for the Revenue has further submitted that the petitioner had been served with notices, Annexures-R(a) and R(b), and the petitioner had participated in the proceedings, which is evident from the order sheet before the assessing officer [Annexure-R(c)]. He submits that what is relevant is the substance of the notice and not the format. In Annexure-R(a), the provision of Section 143(2) of the Act is not mentioned, but that itself would not invalidate the notice. The petitioner had received the notice and participated in the proceedings and, therefore, under the provisions of Sections 292B and 292BB of the Act, neither the notice nor the assessment orders can be said to be in violation of the provisions of Section 143(2) or any other provisions of the Act and the Rules framed thereunder. Once the petitioner had participated in the proceedings and never raised an objection for non-service of the notice of assessments, it cannot contend before this Court that the impugned assessment orders are in violation of the statutory prescription or bad in law, in any manner.

Learned Standing Counsel for the Revenue has also stated that the facts of these cases are distinguishable from the facts of the case in Hotel Blue Moon (supra), wherein notice was not served on the assessee. But, here, the petitioner was served with notice, which has not been disputed. What is being disputed is the format of the notice and not the substance of the notice. It is also not in dispute that after issuance of notice in Annexure- R(a), the petitioner had participated in the proceedings.

Learned Standing Counsel for the Revenue has placed reliance of the Division Bench judgment of this Court in the case of Padinjarekkara Agencies Pvt. Ltd. v. Commissioner of Income Tax [398 ITR 381 (Ker.)], in which it has been said that if the assessee was aware of the issue to be answered and sufficient opportunity of hearing was afforded, even non-issuance of notice under Section 143(2) of the Act would become immaterial and the assessment order issued in such cases cannot be said to be in violation of the statutory provisions.

I have considered the submissions of both sides and perused the writ petitions/records.

The first question which falls for consideration is whether these writ petitions are maintainable. From the facts of the present case, it appears that the petitioner had filed appeals before the CIT(A) against the impugned assessment orders and also filed writ petitions against the same, as mentioned above. Later on the petitioner withdrew those writ petitions on the ground of curing “technical defects”. This Court had permitted only to cure the technical defects, if any, and to file writ petitions afresh. However, this Court had not granted any liberty to the petitioner to withdraw the appeals filed before the CIT(A). I am of the view that withdrawal of the appeals by the petitioner filed before the CIT(A)

Be that as it may, the next contention of the petitioner regarding non-service of notice under Section 143(2) of the Act is also liable to be rejected. In as much as the petitioner was issued notice in Annexure-R(a) and in pursuance to the said notice, the petitioner had participated in the proceedings for re-opening of the assessment orders, which is evident from the order sheet maintained

Considering the provisions of Sections 292B and 292BB of the Act, when the petitioner had participated in the proceedings in pursuance to the notice issued in Annexure-R(a), the petitioner, after finalisation of the assessment orders, cannot take the plea that the assessment orders are incorrect on the ground of non-mentioning of the provision of Section 142(3) in the notice. The assessment orders cannot be challenged on just technical ground, in view of the express provision of Sections 292B and 292BB of the Act.

In view of the above, I find no substance in these writ petitions, which are hereby dismissed. The appeals filed before the CIT(A), which were withdrawn by the petitioner to pursue these writ petitions, are directed to be restored. If the records of those appeals are not available before the CIT(A), the petitioner can file copies of the earlier appeals within a period of fifteen (15) days from today and pursue the appeals, in accordance with law. If the petitioner re-files appeals as directed above, the CIT(A) should decide the same, in accordance with law, on merits, without entering into the question of limitation. All the grounds raised herein are open to the petitioner to be agitated in the appeals before the appellate authority. However, the appellate authority should decide the appeals, on merits, uninfluenced by any of the observations made herein by this Court. Pending interlocutory application, if any, in these writ petitions stands dismissed. DINESH KUMAR SINGH