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Facts
The assessee filed an appeal against the order of the CIT(A) concerning the assessment year 2012-2013. The primary issue revolves around the assessment order which mentioned both Section 144 and Section 143(3) of the Income Tax Act, 1961, being contradictory.
Held
The Tribunal held that mentioning contradictory sections in an assessment order is a curable defect. The matter was restored to the Assessing Officer for fresh adjudication after rectifying the defects, ensuring proper assessment.
Key Issues
Whether mentioning contradictory sections (Section 144 and Section 143(3)) in the assessment order makes it invalid. The curability of such a defect and the need for fresh adjudication.
Sections Cited
144, 143(3), 142(1), 143(2), 131
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Income Tax Appellate Tribunal, “B” BENCH, KOLKATA
आदेश / O R D E R Per Bench : This is an appeal filed by the assessee against the order passed by the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi, dated 10.01.2025 in DIN & Order No.ITBA/NFAC/S/250/2024-25/1072082762(1) for the assessment year 2012-2013. 2. Ms. Monalisa Pal Mukherjee, Sr. DR appeared on behalf of the revenue and Shri Anil Kochar, Advocate appeared on behalf of the assessee. 3. The ld AR has filed additional grounds which read as follows: Additional Grounds 1. For that the Order passed by the Assessing Officer u/s 144/143(3) of the Income Tax Act, 1961 is bad-in-law. 2. For that the Order passed by the Assessing Officer mentioning Sec.1441143(3) of the Act both being contradictory in nature in as much as 2 ITANo.241/Kol/2025 whereas the former is with regard to 'Assessment' the latter is with regard to 'Best Judgment Assessment' is bad-in-law.
For that the provision of Sec.144 and Sec.143(3) are mutually exclusive and cannot be applied jointly since Sec.144 relates to failure to respond to Notices u/s 142(1) and/or 143(2) whereas Sec.143(3) of the Act applies when complied with.
In the additional grounds, the assessee has taken a stand that the AO has mentioned that the assessment order is under sections 144/143(3) of the Act. It was submitted by the ld AR that the provisions of Section 144 of the Act are contradictory to the provisions of section 143(3) of the Act. The assessment needed to be framed u/s.143(3) of the Act when there has been full cooperation by the assessee, whereas for framing the assessment u/s.144 of the Act, the conditions mentioned in the provisions of Section 144(1) of the Act were required to be met inasmuch as there should be non- cooperation from the assessee. The assessment order does not talk of such non-cooperation. It was the submission that as two contradictory sections have been referred to in the said assessment order then the assessment order is liable to be quashed.
In reply, ld. Sr. DR vehemently supported the orders of the Assessing Officer and ld.CIT(A). It was the submission that the ld. CIT(A) has restored the issues to the file of Assessing Officer for passing proper assessment order. It was also the submission that mentioning of both sections was only a typographical error.
We have considered the rival submissions. A perusal of the assessment order clearly shows that in the assessment order, the AO has categorically mentioned that the assessee has not appeared with his books of account, bank statements, copies of the return and the income tax 3 ITANo.241/Kol/2025 returns of the directors to answer various issues raised by the assessee. A further perusal of the assessment order, thus, clearly shows that the assessee has provided some details but not all. The issue in this appeal is with regard to the share application money received. The names and addresses have been provided but the persons have not appeared even though the notices u/s.131 of the Act have been issued. Clause 12 of the assessment order admittedly mentions that the Section under which the assessment is being made is “Section 144/143(3) of the Act”. The said two sections, admittedly, are contrary to each other. It is felt that the non- appearance of the summoned persons cannot be treated as a failure on the part of the assessee. Admittedly, there is an error in the assessment order insofar as the section which is being relied upon by the Assessing Officer is not clearly mentioned. The wrong mentioning of a section does not make an assessment order invalid. At best, it is a curable defect. This being so, we are of view that in view of the principles laid down by the Hon’ble Orissa High Court in the case of Shivkumar Agrawal, reported in [1990] 186 ITR 734 (Orissa), the issues must be required to be restored to the file of Assessing Officer to the point where the curable irregularity has taken place and we do so. Further a perusal of the order of the ld.CIT(A) also shows that he has restored the issues to the file of Assessing Officer for de novo assessment. This being so, in the interest of justice, the order of the ld. CIT(A) is set aside and the issues in this appeal are restored to the file of Assessing Officer for readjudication after rectifying the defects, if any, and granting the assessee adequate opportunities to substantiate its case.