FOMENTO FINANCE AND INVESTMENTS PVT, LTD,, vs. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1 AND ANR.,

This Appeal was admitted on 27.08.2008 on the following substantial questions of law: “(A) Whether on the facts and in the circumstances of the case the ITAT was right in holding that the amount of Rs.11,23,36,500/- representing bogus claim of bad debts was not chargeable to tax as undisclosed income in terms of the amended Sections 158B(b) and 158BB(1) of the I.T.Act?

Thereafter, on 11.02.2016, the Respondents filed a memo of cross-objections alongwith application for condonation of delay. This is numbered as Miscellaneous Civil Application No. 179 of 2016. 4. On 07.03.2016, the Division Bench of this Court ordered that the application for condonation of delay in filing the cross-objections will be examined at the stage of hearing of Tax Appeal No. 75 of 2008 as was suggested by the learned Counel appearing for both the parties.

Today, therefore, the Tax Appeal as well as the application for condonation of delay as filed in cross-objections are taken up for hearing.

Admittedly, the substantial questions of law so framed by the order dated 27.08.2008 arise in the context of a special procedure for assessment of such cases under Chapter XIV-B of the Income Tax Act, 1961, which includes, inter alia, Section 158BC. This provision relates to the provision for block assessment.

In the present case, before ITAT, there were Appeals filed by both, the Assessee as well as the Revenue which came to be disposed of by impugned Judgment and Order dated 10.12.2007. The Assessee had specifically raised a preliminary objection to the assessment proceedings on the grounds that no notice under Section 143(2) of the Income Tax act, 1961 was ever issued to them. This objection was noted by the ITAT. However, this objection was not decided by the ITAT because the ITAT deemed it appropriate to grant the Assessee relief on other grounds, i.e. the ground that this was not a case of “undisclosed income”, which was regarded as one of the prerequisite for assessment under this Chapter.

The substantial questions of law framed in our Order dated 27.08.2008 therefore, mainly relate to this ground on the basis of 5 TXA/75/08 & MCA/179/16 dtd. 13.09.2019 which the ITAT chose to grant relief to the Assessee.

By filing cross-objections, the Assessee seeks to urge the ground based upon non-service of notice under Section 143(2) of the Income Tax Act, 1961. 10. Mr. Pardiwala, learned Counsel for the Assessee submits that the Hon'ble Apex Court in the case of Assistant Commissioner of Income Tax And Another v/s. Hotel Blue Moon1 has now held that notice under Section 143(2) of the Income Tax Act is necessary in case of assessment proceedings under Section 158 BC of the Income Tax Act. He submits that this is a issue which goes to the root of jurisdiction. He submits that in case, if this issue is taken up for consideration and decided in favour of the Assessee, then, there will be no necessity to decide the substantial questions of law framed at the time of admission of this Appeal. He submits that sufficient cause has been shown in the application seeking condonation of delay.

Mr. Pardiwala, without prejudice, submits that in this case, no cross-objections were filed earlier because at the time when this Appeal was admitted, the issue as to whether notice under Section 143(2) of the Income Tax Act is necessary or not had not been 1 2010 3SCC 259

In addition to the aforesaid, Mr. Pardiwala points out in terms of Section 260A(7), the provisions of Code of Civil Procedure (CPC) apply to Appeals to the High Court. He refers to the provisions of Order 41 Rule 33 of the CPC to submit that the Appellate Court has ample powers to consider the question of non- issuance of notice under Section 143(2) and decide the matter in 7 TXA/75/08 & MCA/179/16 dtd. 13.09.2019 favour of the Assessee. He also refers to provisions of Section 260A(6) of the Income Tax Act to submit that the High Court may determine any issue which has not been determined by the Appellate Tribunal. He submits that in the present case the ITAT failed to determine the issue of necessity of notice under Section 143(2) of the Income Tax Act and therefore, this Court may determine the same in this Appeal.

Mrs. Susan Linhares, learned Standing Counsel for the Appellant submits that there is no case made out for condonation of delay which is of over 2000 days in filing cross-objections. She submits that the Assessee was represented by an Advocate and there is no reason to hold that the Assessee was not properly advised in the matter. She further points out that the ITAT has recorded that no further arguments on any other points raised on behalf of the Assessee.

In the peculiar facts and circumstances of the present case, we are satisfied that following substantial question of law does arise for determination in this Appeal: “Whether non-issuance of notice under Section 143(2) of the Income Tax Act, 1961 vitiates that assessment proceedings under Section 158 BC of the Income Tax Act in view of the Judgment of the Hon'ble Supreme

Section 260A reads as follows: “260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involves a substantial question of law. (2) The Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner or Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub- section shall be - (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Principal Chief Commissioner or Chief Commissioner

Section 260A(3) provides that where the the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

Section 260A(4) provides that the appeal shall be heard only on the question so formulated and the Respondents shall at the time of hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso to this sub-section however states that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it,

According to us, there is no dispute from the record that notice under Section 143(2) of the Income Tax Act was never issued to the Assessee before initiating of proceedings under Section 158 BC of the Income Tax Act. The Commissioner (Appeals), in his Order dated 13.09.2004 has given several reasons as to why the issuance of such notice was not a prerequisite for initiating of assessment proceedings under Section 158 BC of the Income Tax Act. According to us, such reasoning cannot any longer prevail after the ruling of the Hon'ble Apex Court in the case of Hotel Blue Moon (supra). In this case, the Hon'ble Apex Court, in terms has held that the requirements of issuance of notice under Section 143(2) within the prescribed period is not some procedural formality or a procedural irregularity to hold that such a requirement is mandatory and non-dispensable. The Hon'ble Apex Court had held that such defect of non-issuance of notice under Section 143(2) of the Income Tax Act is not even a curable defect. Record also indicate that this issue was precisely raised by the Assessee before the ITAT. The ITAT however, after recording that such issue was raised before it, failed to decide such issue one way or the other because, the ITAT held in favour of the Assessee on some other grounds.

Upon cumulative consideration of the aforesaid

In M/s. Sodder Builder and Developers (P) Ltd (supra) in similar circumstances, this Court framed an additional question of law precisely on the issue of absence of notice under Section 143(2) of the Income Tax Act in relation to proceedings under Section 158BC of the Income Tax Act. In the said decision as well, this Court held that if such issue were to be decided in favour of the Assessee, then there would arise no question of going into the substantial questions of law framed at the time of institution of Appeal instituted by and on behalf of the Revenue.

Now that we have framed the aforesaid question of law, which according to us, is certainly involved in the matter, we proceed to decide the aforesaid substantial question of law with the consent of the learned Counsel appearing for the parties.

According to us, the aforesaid substantial question of law will have to be decided in favour of the Assessee in view of the 13 TXA/75/08 & MCA/179/16 dtd. 13.09.2019 decision of the Hon'ble Apex Court in Hotel Blue Moon (supra). The issue relating to service of notice under Section 1432(2) of the Income Tax Act is a issue which goes to the root of the matter. In Hotel Blue Moon( supra), the Hon'ble Supreme Court has now held that issuance of notice under Section 143(2) of the Income Tax Act, 1961 is a mandatory requirement and not some mere procedural irregularity and the same can be said to be curable. In its decision the Apex Court in clear terms has held that the omission on the part of the Assessing Authority to issue notice under Section 143(2)cannot be regarded as a procedural irregularity and the same is not curable and such requirement cannot be dispensed with. Hon'ble Apex Court has held that even for the purpose of Chapter XIV-B of the Income Tax Act for determining of undisclosed income for block assessment in proceedings under Section 158BC, provisions of Section 142, 143(2) and 143(3) are applicable and no assessment can be made without issuing notice under Section 142 of the said Act.

Accordingly, we decide the additional substantial question of law in favour of the Assessee and against the Revenue.

Since, jurisdictional issue is decided in favour of the Assessee and against the Revenue, no useful purpose will be served in deciding the substantial questions of law framed at the time of admission of this Appeal on 27.08.2008. Even if we were to decide these questions

In the aforesaid circumstances, we see no ground to interefere with the impugned Judgment and Order dated 10.12.2007. By answering the additional substantial question of law in favour of the Assessee and against the Revenue, we dismiss this Appeal. There shall be no order as to costs.

In view of the aforesaid, any decision on the issue of condonation of delay in filing the cross-objections is rendered merely academic and therefore, the Miscellaneous Civil Application No. 179 of 2016 is also disposed of, accordingly.