INCOME TAX OFFICERS,WARD -2(1), HYDERABAD vs. OM PRAKASH JHAKHOTIA, HYDERABAD

At the time of hearing it has been brought to our notice that the Revenue filed these appeals with a delay of 315 days. Though not the learned AR concede the condonation of delay, the fact remains that the Hon'ble Supreme Court in the Suo Motu proceedings in the case of Miscellaneous Application No. 665/2021 in SMW(C) No.3 of 2020 has held that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15 March, 2020 till 02 October, 2021 shall be excluded. We, therefore, proceed to hear and decide the appeals on merits.

At the outset, learned AR brought to our notice that the assessment made under section 153A read with section 143(3) for the assessment year 2011-12 and under section 143(3) of the Act for the assessment year 2012- 13 was quashed by a Co-ordinate Bench of the Delhi Tribunal in & 971/Del/2021 by a common order dated 21/02/2022. A copy of the order is produced before us and it forms part of record.

For the sake of completeness, we deem it just and necessary to produce relevant operative portion of the order dated 21/02/2022 (supra), here under,- 46. It quite clearly comes out that the mention of nature of the order as section 153A r.w.s. 143(3) was not a technical mistake or an error which can be cured by resorting to the provisions of section 292B of the Act. The Assessing Officer even though recording that no & 284/Hyd/2022 C.O.Nos. 17 & 18/Hyd/2022 return had been filed and no notice under section 143(2) had been issued, continued to proceed as if he was making an assessment under section 143(3) of the Act. Hence, the order made under section 153A/ 143(3) is not legally tenable and ought to have been made under section 144 of the Act. There is a clear distinction between the two forms of orders i.e. section 143(3) and section 144 and therefore, in the present case, the orders ought to have been passed under section 144 of the Act. Hence the orders so passed by the Assessing Officer u/s 143(3) for the A.Y 2012-13 and under section 153A read with section 143(3) for the A.Ys 2011-12 and 2009-10 suffer from an incurable jurisdictional defect and cannot be upheld. On this count alone the assessment orders in respect of A.Ys 2012-13, 2011-12 and 2009-10 do not survive and are liable to be quashed.

Though the learned DR placed reliance on the orders of the authorities below, the fact remains that the very assessment for the assessment years 2011-12 & 2012-13 stood quashed by a Co-ordinate Bench at the instance of the assessee and, therefore, it is not open for the Revenue to press the departmental appeals. These appeals as well as cross objections have become infructuous and are accordingly dismissed.

In the result, all the appeals and the cross objections are dismissed.