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Income Tax Appellate Tribunal, ‘’ A’’ BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED & SHRI SIDDHARTHA NAUTIYAL
आदेश/O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned four appeals have been filed at the instance of the Assessee against the separate orders of the Learned Commissioner of Income Tax (Appeals)- XVI, Ahmedabad, of even dated 26/09/2011 arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Years (1992-1993 to 1995- 1996).
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ITA No. 1022/Ahd/2018 for AY 1992-1993
The assessee has raised the following grounds of appeal: 1. That the order passed by the learned Commissioner of Income Tax (Appeals) is against the law, facts, equity and natural justice and therefore the order passed by the learned AO is to be quashed. 2. That the learned Commissioner of Income Tax (Appeals) has erred in law by confirming the action of issue of notice u/s.148 of the Income Tax Acl, 1961 and issue of notice under section 143(2) of the Act and therefore the order passed by the Id.AO should be quashed. 3. That the learned Commissioner of Income Tax (Appeals) has erred in law by confirming the assessed income wherein addition of Rs.8,78,660/- (Rs.7,73,000/- of Credit under section 69, Rs.7,730/- of Income, Rs.48,000/- for Household expenses and addition u/s 154 of Rs.49,930/-) has been made by the Id.AO and therefore the AO is directed delete the said additions, while computing the total income. 4. The Id.AO is to be directed to compute the correct amount of interest under section 234A and 234B of the Act, on the last assessed income. 5. That the appellant craves liberty to add, amend, alter and delete any grounds of appeal before the final hearing.
The assessee in ground No. 1 and 2 has challenged the validity of the assessment framed under section 147 read with section 143(3)/254 of the Act on the reasoning that the assessment has been framed without issuing notice under section 143(2) of the Act.
It is the 2nd round of litigation before us. The ITAT on the earlier occasion vide order dated 23rd January 2009 in ITA Nos. 857 to 860/AHD/2006 and 1103 to 1106/AHD/2006 has given liberty to the assessee to agitate the issue before the AO whether the notice under section 143(2) of the Act was issued by the AO for framing the assessment under section 143(3) read with section 147 of the Act. It was also directed by the ITAT in its order that the AO should framed the assessment by way of speaking order on the issue whether the notice under section 143(2) of the Act was issued or not after considering the objections to be raised by the assessee. The relevant finding of the ITAT reads as under: “ We find that the orders of the lower authorities that the issue is raised before us for the first time and the facts relating to issuance of notice u/s.143(2) of the Act is not available on records. In the absence of this, we set aside these appeals to the file of the AO and the assessee is free to agitate this jurisdictional issue before the AO.”
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4.1 In view of the above direction of the ITAT, the assessee vide letter dated 26th July 2010 and 6th August 2010 requested the AO to supply the certified copy of the notice issued under section 143(2) of the Act.
The AO in response to the contention of the assessee submitted that notice under section 143(2) along with the notice under section 142(1) of the Act was duly served upon the assessee vide letter dated 8th September 1998 and thereafter the assessee and his authorized representative has made due compliances by way of personal attendance dated 16th September 1998. Thus it becomes evident that there was no objection raised by the assessee on the issuance of notice under section 143(2) of the Act rather the assessee co-operated in the assessment proceedings in response to such notice. Therefore, the assessee is precluded to raise such objection in pursuance to the provisions of section 292B of the Act. Likewise, such issue was not raised by the assessee even before the learned CIT-A on earlier occasion when the matter was set aside by the learned CIT-A to the AO. Thus the AO dismissed the objection raised by the assessee.
The assessee carried the matter before the learned CIT-A, who confirmed the order of the AO by observing as under: 3.2 It will be pertinent to mention here that the whole of the department was reorganized in the year 2001 and the initial records prior to 2001 are not traceable.; The basic records for service of the notices ere. are the dispatch regjster and the diary of the Notice Server. If the notice was not served upon the appellant, the first ground before the CIT(A) could have been regarding service of the notice u/s 143(2) of the Act. However, the appellant had wailed for the record to be not traceable., Even, no ground of appeal was taken before the Tribunal initially but additional ground of appeal was raised when it was confirmed that no benefit will be available on merits from the Tribunal^ The appellant had raised the additional ground before the Hon'ble Ahmedabad Tribunal only when he was confirmed that the initial records prior to 2001 cannot be traced out. The circumstantial evidences are on record as the Counsel of the appellant had appeared before the Assessing Officer on 16.09.1998 in compliance to the notice dated 08.09,1998 issued and served upon the appellant and continued the hearing till finalisation of assessment. Therefore, the benefit of absence of initial records cannot be given to the assessee after lapse of about 13years from the date of issue of notice u/s .143(2) of the Act. The Assessing Officer had thus rightly mentioned in the assessment order that notice u/s. 143(2) dated 08-09-1998 was served upon the appellant vide which the date of hearing was fixed on 16-09-1998 and the Authorised Representative of the assessee had attended the hearing on 16-09-1998. Thus, there is no substance in the second ground of appeal and the same is hereby dismissed.
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Being aggrieved by the order of the learned CIT-A, the assessee is in appeal before us.
At the outset the learned AR before us submitted that there was the delay in filing the appeal before the ITAT for about 2337 days. The assessee also filed the affidavit dated 30th April 2018 to justify the delay in filing the appeal before the ITAT. It was explained that there was a lot of financial crisis, family disputes relating to his son with his wife. It was submitted that the marriage was solemnized in December 2010 and soon thereafter the differences begun between the husband- and-wife mainly on account of inter cast marriage from 2012 which finally ended up with the divorce in the year 2019. As such, the delay in filing the appeal happened on account of all these disputes in the family. There is the only son of the assessee who was struggling with his family life. The learned AR further submitted that the assessee has fair chance to succeed in his case on merit. Therefore, in the interest of justice and fair play, the appeal of the assessee should be admitted for adjudication on merit.
On the contrary, the learned DR submitted that family dispute was there between the son and daughter-in-law of the assessee. As such, the assessee had no other personal problems. As per the learned DR, the assessee could have filed the appeal well in time. According to the learned DR, the delay is inordinate and therefore the same should not be condoned.
The learned AR on merit of the case submitted that there was no notice issued under section 143(2) of the Act by the AO and this fact can also be verified from the order sheet entry prepared by the AO. Thus in the absence of such notice, the entire assessment proceedings are null and void.
On the other hand, the learned DR before us filed written submission dated 29-09-2022 running into 4 pages wherein it was opposed to condone the delay. The
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ld. DR also contended that the initial records were also not traceable due to restructuring of the Department. Furthermore, the assessee did not challenge the validity of the assessment before the ld. CIT-A as well. The assessee also co- operated during the assessment and thus the assessee cannot challenged the service of notice under section 292B of the Act. The ld. DR vehemently supported the order of the authorities below.
We have heard the rival contentions of both the parties and perused the materials available on record. Under the provisions of the Act, there is a time limit specified under the respective section of the Act for filing the appeal against the finding of the specified authority. However, the provisions of the Act also provides relaxation to the parties, if failed to file the appeal within the stipulated time, if there was the sufficient cause which prevented the assessee/party in doing so. It is the trite law that the Hon’ble Courts time and again in the series of cases have held that the expression "sufficient cause" should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. In this regard, we note that the Hon’ble Madras High Court in the case of Sreenivas Charitable Trust v. Dy. CIT reported in 280 ITR 357 has held that: “3. The Supreme Court in Vedabai v. Shantaram Baburao Patil [2002] 253 ITR 798held as under: "In exercising discretion under section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression ‘sufficient cause’, the principle of advancing substantial justice is of prime importance." (p. 799)
The Calcutta High Court in CIT v. Orissa Concrete & Allied Industries Ltd. [2003] 264 ITR 186 held as under : ". . .what is really indicated in the various decisions cited and in section 5 of the Limitation Act itself, is that a litigant would be required to explain why the appeal and/or application could not be filed within the period prescribed by limitation and explain the delay for such period for the purpose of linking up the circumstances which had caused the delay during the period of limitation and thereafter." (p. 192)
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Recently, the Allahabad High Court in Ganga Sahai Ram Swarup v. ITAT [2004] 271 ITR 512 has taken the view that liberal view ought to have been taken by the authority as the delay was only of a very short period and the appellant was not going to gain anything from it.
Applying the ratio laid down by the Apex Court as well as various High Courts, we find, it is stated in the petition filed by the assessee for condonation of delay that the order copy was misplaced and thereafter it was found and sent to counsel for preparing the appeal and then, the appeal was prepared and filed before the Tribunal and in that process, the delay of 38 days occurred. As held by the Apex Court, no hard and fast rule can be laid down in the matter of condonation of delay and the Courts should adopt a pragmatic approach and the Courts should exercise their discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing substantial justice is of prime importance and the expression "sufficient cause" should receive a liberal construction. We are, therefore, of the opinion that the Appellate Tribunal ought to have condoned the delay in filing the appeal, considering the reasons given by the assessee for the delay.”
12.1 The assessee, in the present case, has explained the reasons for the delay in filing the appeal. There was the affidavit filed by the assessee, explaining the reasons for the delay in filing the appeal before us. However, the Revenue has not filed any counter-affidavit to deny the allegation made by the assessee.
12.2 It is also important to note that Hon’ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down certain principles for considering the condonation petition for filing the appeal which are reproduced hereunder: (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
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12.3 From the above judgment of the Hon’ble Apex Court, we note that the substantial justice deserves to be preferred rather, deciding the matter on the basis of technical defect.
12.4 We also note that there is no allegation from the Revenue that the appeal was not filed within the time deliberately. Therefore, we are inclined to prefer substantial justice rather than technicality in deciding the issue.
12.5 The next controversy arises whether the delay of 2237 days was excessive or inordinate. There is no question of any excessive or inordinate when there was reasonable cause which prevented the assessee in filing the appeal. As such we need to consider the cause for the delay and not the length of the delay. Accordingly in our considered view when there was a reasonable cause, the period of delay may not be relevant factor. We find support from the judgment of the Hon’ble Madras High Court in the case of CIT v. K.S.P. Shanmugavel Nadai and Ors reported in 153 ITR 596 wherein it was held as under : “Since in this case the assessee had been prosecuting other remedies, the time taken by those proceedings should naturally be taken while determining the question whether the assessee had sufficient cause for not presenting the appeal in time. Therefore, the revenue was not right in submitting that the appeal filed under section 17 was an appeal against the original order of assessment under the Act, which was passed about 20 years ago, as it was evident that the appeal was against an order of rejection of relief by the assessing authority. Thus, though the Tribunal's view that there was no question of limitation in such cases, was not correct yet the AAC was right in condoning the delay and entertaining the appeal.”
12.6 From the above, we note that the Hon’ble Madras High Court in the above case was pleased to condone delay for 20 years approximately by holding that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation.
12.7 The delay in the instant case is just of 2337 number of days which cannot be considered to be inordinate or excessive in comparison to the delay of 7330 days approximately. In view of the above, we are of the opinion that when there is
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sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the duration/period of the delay. In this case, the non-filing of an affidavit by the Revenue for opposing the condonation of delay itself is sufficient for condoning the delay of 2337 number of days. Thus, we condone the delay of 2337 days in filing the appeal and proceed to hear the appeal on merit for the adjudication.
Coming to issue raised by the assessee in the grounds of appeal. The issue in the instant case raises two situations as detailed under: 1- Whether the assessment made under section 143(3) read with section 147 of the Act without issuing the notice under section 143(2) is valid. And 2- Whether the provision of section 292BB is attracted in the given facts and circumstance so as to make the assessment valid. 13.1 Admittedly, the return was filed by the assessee in response to the notice issued under section 148 of the Act. The return filed under section 148 of the Act is deemed to have filed under section 139 of the Act. Therefore all the provision specified under section 139 of the Act comes into play to a return filed under section 148 of the Act. The relevant provisions of section 148 of the Act read as under: [Issue of notice where income has escaped assessment. 148. [(1)] Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve49 on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 :]
13.2 We further note that the expression used under section 148 of the Act i.e. “so for as may be” has been interpreted by the Hon’ble Apex court in the case of R Dalmia Vs. CIT reported in 236 ITR 480, that once the return filed under section 148 of the Act then in making the assessment and reassessment under section 147 of the Act the provisions as specified under section 139 of the Act has to be followed. The relevant extract of the judgment is reproduced as under:
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“It is no doubt that assessments under section 143 and assessments and reassessments under section 147 are different, but in making assessments and reassessments under section 147 the procedure laid down in sections subsequent to section 139, including that laid down by section 144B, has to be followed” 13.3 From the above judgment, there remains no ambiguity that the procedural provisions for making the assessment under section 143(3) of the Act has to be followed. Therefore, it is mandatory upon the Revenue to ensure the service of notice under section 143(2) of the Act even in the assessment framed under section 147 of the Act.
13.4 We also find support and guidance from the order of Special Bench of Delhi in the case of Raj Kumar Chawla v/s ITO reported in 145 Taxman 12 wherein it was held as under: “Section 148 does not provide any methodology for computing the income on reassessment or assessment. On the contrary, it creates a legal fiction that such return shall be treated as one made under section 139. By the creation of such legal fiction all the procedures prescribed in and subsequent to section 139 automatically apply in toto. It is a settled principle that a legal fiction has to be taken to its logical conclusion and, therefore, what is valid for a return under section 139 will be valid with equal force to a return filed under section 148. Therefore, the proviso will apply to a return filed in response to notice under section 148. Clause (b) of section 158BC specifically talks of the applicability of section 142, sub-sections (2) and (3) of section 143. There is an omission of sub-section (1) of section 143. This Chapter clearly prescribes its own return, form of own methodology for computation of income but falls back on the provisions of sections 142, 143 and 144 etc., only for procedural aspect. If the proviso is made applicable, then a clash erupts between the provisions of Chapter XIV-B with section 143(2) as the assessment is mandatory under this Chapter. [Para 31”
13.5 We also find support and guidance from the judgment of Hon’ble Kerala High Court in the case of Lally Jacob v/s ITO reported in 197 ITR 439 wherein it was held as under: “A reading of sections 147 and 148 makes it clear that, at any rate, an assessment for the first time made by resort to section 147 is a regular assessment. Section 148 enjoins the Income-tax Officer before making an assessment under section 147 to serve a notice on the assessee containing all or any of the requirements which may be included in a notice under sub-section (2) of section 139. The further provision in that section is very significant which provides that the aforesaid notice has to be treated as if it is a notice under section 139(2) and that all the provisions of the Act shall apply to the subsequent procedure and the final assessment. In other words, the notice issued under section 148 has to be deemed to be a notice under section 139(2) and, if the other provisions of the Act have to be applied, an assessment in pursuance of that can be made only under section 143 or section 144. We were not shown any other provision by which the Income-tax Officer is authorised to make an order of assessment under the Act. The provisions contained in section 140A also give an indication that an assessment made in pursuance of a notice under section 148 is a regular assessment under section 143 or section 144, for section 140A(2) provides that any
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admitted tax paid in pursuance of section 140A(1) shall be deemed to have been paid towards the regular assessment under section 143 or section 144. It is pertinent to note that section 140A(1) deals with a return required to be furnished under section 139 or section 148. That makes the provision clear that an assessment made under section 147 also will be a regular assessment under section 143 or section 144. Accordingly, we hold that any assessment made for the first time by resort to section 147 will also be a regular assessment for the purpose of invoking section 217 of the Act. With great respect, we dissent from the view expressed in certain decisions referred to earlier in this judgment which take a contrary view." (p. 452)”
13.6 We also find support and guidance from the judgment of Hon’ble Gujarat High Court in the case of ITO versus Smt. Sukhini P. Modi. Reported in 367 ITR 682 wherein it was held as under: “8. The apex court in the case of Asstt. CIT v. Hotel Blue Moon [2010] 321 ITR 362/188 Taxman 113 has considered the very issue. The apex court held that the Assessing Officer has to necessarily follow the provisions of section 142 and sub-sections (2) and (3) of section 143. It did not accept the submission of the Revenue that the requirement of the notice under section 143 can be dispensed with and the same is mere procedural irregularity. In the words of the apex court, it is held as under (page 370) : "The case of the Revenue is that the expression 'so far as may be apply' indicates that it is not expected to follow the provisions of section 142, sub-sections (2) and (3) of section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression' so far as may be apply'. In our view, where the Assessing Officer in repudiation of the return filed under section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143." 9. In the instant case, we notice that both the Commissioner of Income-tax (Appeals) and the Tribunal have held that the procedure prescribed of issuance of notice under section 143(2) has not been followed at all. This realm of fact has not been disputed by the Revenue. In view of this decision of the apex court, the assumption of the jurisdiction of issuance of notice of reopening itself would not be sustainable, and, therefore, this court does not require to indulge into the concurrent findings of both the authorities. In the absence of fulfilment of mandatory requirement of issuance of notice under section 143(2) both the authorities rightly and validly held against the Revenue and in favour of the assessee. Resultantly, the tax appeals deserve no further consideration and are dismissed with no order as to costs.”
13.7 Thus, in view of the above we conclude that the AO is under the obligation to issue a notice under section 143(2) of the Act for making the assessment or reassessment as the case may be under section 147 of the Act.
13.8 We further note that the provisions of section 292BB of the Act deals with the situation where notice is not served or not served on time or served in a improper manner viz a viz the assessee does not raise objection before the
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completion of the assessment. As such, the provision of section 292BB of the Act does not deal about the issuance of notice. In the present case, the issue is whether the assessment framed under section 147/143(3) of the Act is valid without the issuance of the mandatory notice under section 143(2) of the Act. Accordingly we hold that, the provision of section 292BB of the Act does not extend any benefit to the Revenue in case notice under section 143(2) was not issued.
13.9 In holding so we find support and guidance from the judgment of Hon’ble Gujarat High Court in the case of PCIT v/s Marck Biosciences Ltd. reported in 106 Taxmann.com 399 wherein it was held as under; “The facts as emerging from the record show that it is an admitted position that no notice under section 143(2) had been issued after the assessee informed the Assessing Officer to treat the earlier return of income as the return filed in response to the notice under section 148 of the Act. In other words, no notice under section 143(2) was issued after the filing of the return of income. The question that, therefore, arises for consideration is whether the assessment order framed under section 143(3) read with section 147, would be rendered invalid in the absence of a notice under section 143(2) of the Act? On a plain reading of provision of section 143(2), it is manifest that it contemplates that when an assessee files a return under section 143 and the Assessing Officer finds that any claim as described therein is inadmissible, he is required to serve a notice to the assessee specifying particulars of such claim and a date on which he should produce or cause to be produced, any evidence or particulars specified therein on which the assessee may rely in support of such claim. Further, from the language employed in section 292BB of the Act, it emerges that a notice would be deemed to be valid in the three circumstances provided therein, namely, where the assessee has participated in the proceedings it would not be permissible for him to raise objection that (i) the notice was not served upon him; or (ii) was not served upon him in time; or (iii) was served upon him in an improper manner Thus, all the circumstances contemplated under section 292BB of the Act are in a case where a notice has been issued, but has either not been served upon the assessee or not served in time or has been served in an improper manner. The said provision clearly does not contemplate a case where no notice has been issued at all In the facts of the present case, if the contention of the assessee were to be accepted, it would amount to dispensing with the notice under section 143(2) of the Act in view of the fact that it is an admitted position that no such notice had been issued after the return of income was filed by the assessee. After the filing of the return of income, unless a notice under section 143(2) of the Act is issued to the assessee, he would have no means of knowing as to whether or not the Assessing Officer has accepted the return of income as filed by him. As held by the Supreme Court, omission to issue a notice under section 143(2) is not a procedural irregularity and is not curable. It is, therefore, mandatory to issue notice under section 143(2) of the Act. Section 292BB provides for a deeming provision that any notice under any provision of the Act, which is required to be served upon the assessee, has been duly served upon him in
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time, in accordance with the provisions of the Act. This section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of the present case, at the cost of repetition, it may be stated that no notice under section 143(2) has been issued after the assessee had filed its return of income and hence, section 292BB would not be attracted. In the light of the fact that non-issuance of a notice under section 143(2) is not a procedural irregularity, the same cannot be cured under section 292BB of the Act and hence, the assessment order passed without issuance of notice under section 143(2) would be rendered invalid. The Tribunal as well as the Commissioner (Appeals), therefore, did not commit any error in holding that the notice issued prior to the filing of the return of income was invalid and that, in absence of a valid notice under section 143(2) the assessment order was rendered invalid.” 13.10 We also find important to refer the judgment of Hon’ble Gujarat High Court in the case of CIT Vs. Panorama Builders Pvt. Ltd. reported in 45 taxmann.com 159 wherein it was held as under: “14. Therefore, we are of the considered opinion that section 292BB does not apply to issuance of notice, neither it cures the defect or enlarges statutory period where a mandatory notice under section 143(2) of the Act is required to be issued within limitation fixed under the Act. In absence of issuance of the notice under the proviso to section 143(2) of the Act within a period of 12 months from the end of the month in which return was furnished by the assessee, the proceedings initiated by the Assessing Officer with regard to block assessment period 1.4.1997 to 25.7.2002 on the basis of notice issued on 6.7.2006 under section 143(2), after about 20 months, was time barred and the entire proceedings in pursuance of such notice is null and void.”
13.11 In view of the above, we conclude that it was mandatory to issue the statutory notice under section 143(2) of the Act within the prescribed time and such defect cannot be cured under the provisions of section 292BB of the Act.
13.12 Coming to the facts of case on hand. Admittedly, it is the second round of litigation before us. As such the ITAT on the earlier occasion has set aside the issue on hand to the AO for fresh adjudication as discussed somewhere in the preceding paragraph. Thus, it is the onus upon the Revenue to bring the fact on the surface based on the documentary evidence that the mandatory notice under section 143(2) of the Act was issued upon the assessee. The fact of issuing the notice under section 143(2) of the Act has already been recorded in the assessment order but despite that the revenue was not able to bring the copy of such notice. Indeed, the matter is very old and there is every possibility that records of the Department might have
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misplaced. However, in this regard we note that the learned AR was able to produce the order sheet entry recorded by the AO during the assessment proceedings which also does not contain any information about the issuance of notice under the provisions of section 143(2) of the Act. The copy of the order sheet entry maintained by the AO during the assessment proceedings is available on record. At this juncture, it is also significant to note that the Department was able to maintain the order sheet entry of such old record thus it can be inferred that the records were not misplaced by the Department in the case of the assessee. However, such records were not containing the copy of the notice issued under section 143(2) of the Act. Thus in such facts and circumstances, we hold that the mandatory notice was not issued under section 143(2) of the Act by the Revenue and accordingly the proceedings against the assessee under the provisions of section 143(3) read with section 147 of the Act are not sustainable. Thus, we hold that the assessment framed under section 143(3) read with section 147 of the Act is void-ab-initio. Hence the ground of appeal of the assessee is allowed.
As we have held that the assessment framed by the AO under the provisions of section 143(3) read with section 147 of the Act is not sustainable, there is no reason to adjudicate the issue raised by the assessee on merit. Accordingly, the issue raised by the assessee on merit is dismissed being infructuous.
14.1 In the result, the appeal filed by the assessee is partly allowed. Coming to ITA No. 1023 to 1025/Ahd/2018 an appeal by the Assessee corresponding to A.Y. 1993-94, 1994-95 and 1995-96.
At the outset, we note that the issues raised by the Assessee in its appeal for the AYs 1993-94, 1994-95 and 1995-96 are identical to the issue raised by the assessee in ITA No. 1022/AHD/2018 for the assessment year 1992-93. Therefore, the findings given in ITA No. 1022/AHD/2018 shall also be applicable for the A. Ys 1993-94, 1994-95 and 1995-96. The appeal of the Assessee for the assessment 1992-93 has been decided by us vide paragraph No. 12 to 14 of this order where
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the issue on technical ground has been decided in favour of the Assessee whereas issue on merit has been dismissed as infructuous. The learned AR and the DR also agreed that whatever will be the findings for the assessment year 1992-93 shall also be applied for the AYs 1993-94, 1994-95 and 1995-96. Hence, the grounds of appeal filed by the Assessee for AYs 1993-94, 1994-95 and 1995-96 on technical ground are hereby allowed and on merit hereby dismissed as infructuous.
15.1 In the result appeal of the Assessee for AYs. 1993-94, 1994-95 and 1995-96 is hereby partly allowed.
In combined result all the appeal of the assessee is hereby partly allowed.
Order pronounced in the Court on 23/11/2022 at Ahmedabad.
Sd/- Sd/- (SIDDHARTHA NAUTIYAL) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 23/11/2022 Manish