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Income Tax Appellate Tribunal, DIVISION BENCH, JODHPUR
Before: SHRI N.K. SAINI & SHRI SANDEEP GOSAIN
PER N.K. SAINI, VICE PRESIDENT :
This is an appeal filed by the Assessee against the order dt. 15/02/2018 of the Ld. CIT(A)-1, Jodhpur.
Following grounds have been raised in this appeal:
THAT according to the facts and circumstances of the case the learned CIT (Appeals) has erred in rejecting the appeal for deleting the additions of Rs. 5,34,11,530/- made by the learned ITO ward 1(1), Jodhpur. 2. THAT the learned CIT (Appeals) has grossly erred in upholding the invoking of and proceedings under the provisions of section 147 of the Income Tax Act, 1961 by the learned ITO & issuing notice under section 148 by him due to various reasons including the facts that the learned ITO did not have any "Reason to Believe" nor did he issue any notice under section 143(2) and he did not dispose off the objections raised etc. 3. THAT the learned CIT (Appeals) has erred in upholding the deeming of the date of sale of
lands as 14.07.2011 contrary to the facts that the actual dates of sale fell in the years 1998- 99, 1999-2000 in view of the sub-clause (v) of clause (47) of section 2 of the Income Tax Act, 1961 read with section 53A of Transfer of Property Act and consequently charging the capital gains under section 45 of the Income Tax Act. 4. THAT the learned CIT (Appeals) has erred in upholding the adoption of the value of the lands under section 50C of the Income Tax Act by the learned ITO. 5. THAT the learned CIT (Appeals) has erred in distinguishing the judgments of Hon'ble Supreme Court and High Courts cited by the appellant without discussing the ratio of those judgments as the case of the appellant was squarely covered by those judgments. 6. THAT without prejudice to the above grounds the learned CIT (Appeals) has erred in not taking into account the cost of acquisition of the asset while computing capital gains and the amount of entire sale consideration has been taken as capital gains. 7. THAT the learned ITO has erred in calculating surcharge, education cess and interest u/s 234A, 234B and 234C. 8. THAT any other grounds of appeal may please be permitted to be added, altered, amended or deleted on or before the date of hearing of appeal. 9. THAT the appellant prays that the proceedings under section 147 may please be held as against the provisions of law and consequently the additions of Rs.5,34,11,530/- may please be deleted. 10. THAT the appellant craves for justice.
At the first instance the only legal ground relating to the issuance of notice under section 143(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) raised vide Ground No. 2 was argued by both the parties. 3. Ld. Counsel of the Assessee at the very outset stated that no notice under section 143(2) of the Act was issued and this fact has already been mentioned by the Ld. CIT(A) in para 3.3 of the impugned order.
He relied upon the latest judgment of the Hon'ble Supreme Court in the case of CIT Vs. Laxman Das Khandelwal in Civil Appeal Nos. 6261-6262 of 2019 order dated 13/08/2019 (copy of the said order was furnished which is placed on record).
In his rival submissions the Ld. Sr. DR strongly supported the orders of the authorities below and further submitted that the assessee cooperated and appeared in the proceedings before the Assessing Officer as well as before the Ld. CIT(A). Therefore, in view of the provisions contained under section 292BB of the Act the Ld. CIT(A) was justified in confirming the action of the Assessing Officer.
We have considered the submissions of both the parties and perused the material available on the record. In the present case it is an admitted fact that notice under section
143(2) of the Act was not issued to the assessee after reopening the assessment under section 147 r.w.s 148 of the Act.
On an identical issue the Hon'ble Apex Court in the case of CIT Vs. Laxman Das Khandelwal (supra) held as under:
" 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in the case of ACIT Vs. M/s Hotel Blue Moon in Civil Appeal No. 1198 of 2010 dt. 02/02/2010. The issue that however needs to be considered is the impact of Section 282BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to maek service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter. 7. We therefore keeping in view the ratio laid down by the Hon'ble Apex Court in the aforesaid referred to case, set aside the impugned order passed by the Ld. CIT(A) and quash the assessment order passed by the Assessing Officer without issuing the notice under section 143(2) which is mandatory requirement for framing the assessment under section 143(3) r.w.s 147 of the Act.
Since we have decided the legal issue in favour of the assessee, no findings are being given on the remaining issues raised by the Assessee.
In the result appeal of the assessee is allowed.
(Order pronounced in the open Court on 25/11/2019 )
Sd/- Sd/- (SANDEEP GOSAIN) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT Dated : 25/11/2019 AG
Copy to: 1.The Appellant, 2. The Respondent, 3. The CIT(A), 4. The CIT, 5. The DR