SHRI GOVIND NARAIN JOHARI,JAIPUR vs. DCIT, CENTRAL CIRCLE-3, JAIPUR

PER SANDEEP GOSAIN, J.M.

This is an appeal filed by the assessee against the order of ld. CIT(A)-3, Jaipur dated 20.03.2015 for the assessment year 2007-08. The assessee has raised the following grounds of appeal :-

2 ITA NO. 501/JP/2015 M/s. Handmade Paper & Board Industries, Jaipur.

The ld. A/R of the assessee has submitted that Ground No. 1 of the assessee’s

appeal is a legal ground and the same may be taken up first. In this ground the

appellant has contended that order under section 143(3) was passed without any

3 ITA NO. 501/JP/2015 M/s. Handmade Paper & Board Industries, Jaipur.

authority as also that notice issued u/s 143(2) was not valid and the entire

assessment proceedings was void ab initio. Since the ground raised by the assessee

is legal in nature and goes to the root of the matter, therefore, we first propose to

take ground no 1 raised by the assessee.

exporter of handmade papers. The assessee filed its return of income for the

A.Y. 2007-08 on 31.03.2008. It was a belated return filed under section

139(4) of the I.T. Act, 1961 i.e. filed beyond the due date of filing return of

income under section 139(1) of the IT Act for the A.Y. 2007-08 which was

31.10.2007 declaring Nil income. Inadvertently same return of income was

again resubmitted on 01.04.2008 without any correction and changes by the

accounting staff of the assessee which was not a valid one since the assessee

is not allowed to revise/amend any return filed u/s 139(4) of the IT Act, 1961.

2.1. The A.O. issued notice u/s 143(2) of the Act for the assessment year

2007-08 on 28.08.2009 which was served on the assessee on 02.09.2009 for

making the assessment under section 143(3) of the IT Act. The assessee

attended the proceedings from time to time and the AO passed assessment

order under section 143(3) of the IT Act on 24.12.2009 by making various

additions. The assessee preferred an appeal before the ld. CIT (A)-III, Jaipur

against said order on 28.01.2010. The ld. CIT (A)-III, Jaipur passed order on

22.12.2010 giving part relief to the assessee against which the assessee

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preferred an appeal before the ITAT on 09.02.2011. Meanwhile, assessee was

served a notice u/s 263(1) of the IT Act dated 20.05.2010 for revisionary

action under section 263. The ld. CIT-III, Jaipur passed an order under

section 263 of the IT Act on 09.07.2010 after giving proper opportunity of

being heard to the assessee. Being aggrieved, the assessee filed an appeal

against this order before the ITAT Jaipur on 30.07.2010. Thus there were

two appeals before the ITAT Jaipur, for the assessment year 2007-08, one

against the order of ld. CIT (A)-III and another against the revisionary order

of ld. CIT-III, Jaipur. The ITAT Jaipur Bench decided the appeals vide its

order dated 30.09.2011 directing that a fresh order be made by the ACIT

Circle-7, Jaipur taking into consideration the points raised by the ld. CIT-III,

Jaipur in his revisionary order as well as any fresh issue which may come into

the notice of the AO. On the direction of the ITAT, a fresh assessment was

framed by the ACIT, Circle-7, Jaipur on 28.03.2013 by making new additions.

Aggrieved by this order, the assessee preferred an appeal before the ld. CIT

(A)-III, Jaipur on 25.04.2013. The ld. CIT (A)-III, Jaipur passed the order

under section 250 of the Act on 18.03.2015 by allowing some relief. The

assessee, being aggrieved by the order of ld. CIT (A)-III, dated 18.03.2015

preferred an appeal before this Tribunal on 30.04.2015.

involved in this case (ground no. 1) is regarding the issuance of notice under

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section 143(2) of the IT Act, 1961 by the AO which is purely legal in nature and

all relevant facts for adjudication of this ground are available on record. He has

further contended that no new facts are required to be examined or investigated,

therefore, the ground raised by the assessee may be admitted for adjudication. In

support of his contention he has relied upon the decision of Hon’ble Supreme Court

in the case of NTPC vs. CIT 229 ITR 383 (SC) and submitted that the Hon’ble

Supreme Court has discussed the power of the Tribunal in entertaining the fresh

plea at this stage which does not require any new facts or investigation of any fact

for adjudication and, therefore, a legal issue can be raised before the Tribunal for

first time so long as the relevant facts are on record in respect of that item.

and submitted that the assessee did not raise this issue before the authorities below

and after the AO as well as the ld. CIT (A) have decided the matter against the

assessee, the assessee has first time raised this ground without explaining the

reasons as to why the same was not raised before the authorities below, therefore,

the same cannot be accepted at this stage. He has relied upon the orders of the

authorities below.

record. We do not agree with this contention of the ld. D/R because in the case in

hand what is absent is the issuance of notice under section 143(2) within the period

of 12 months from the end of the month in which return was filed. Therefore,

following the judgment of the Hon’ble Supreme Court in the case of NTPC vs. CIT

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229 ITR 383 (SC) and in the interest of principles of natural justice, we admit the

legal ground raised in ground no. 1 of the appeal for adjudication and decide the

same first.

5.1. The ld. A/R submitted that the order under section 143(3) was passed

without any authority as also that notice issued u/s 143(2) was not valid and the

entire assessment proceedings was void ab initio. The ld. A/R submitted that the

main issue involved in this case is regarding the issue of notice u/s 143(2) of the IT

Act, 1961 by the AO. The assessee was required to file its return of income for the A.Y. 2007-08 by 31st October, 2007 but it filed belated return under section 139(4) on 30.03.2008. The time limit for issue of notice under section 143(2) is upto 31st

March, 2009 i.e. within 12 months from the end of the month in which return was

filed. Accordingly, the notice under section 143(2) by the AO should have been issued on or before 31st March, 2009 but the AO issued the notice under section 143(2) on 28th August, 2009 and served on the assessee on 02.09.2009 which was

beyond the time limit prescribed under the IT Act, 1961. The provisions of section

143(2) of the IT Act, 1961 reads as under :-

“ Where a return has been furnished under section 139 or in response to a notice issued u/s 142(1), the AO shall –

(i) Where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him to an a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely

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in support of such claim; [Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003]. (ii) Notwithstanding anything contained in the clause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under paid the tax in any manner, serve on the assessee a notice requiring him on a date to be specified therein either to attend his office or to produce or cause to be produced any evidence on which the assessee may rely in support of the return. [Provided that no notice under clause (ii) shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished]

The ld. A/R therefore, submitted that from the plain reading of the above provisions,

it can be clearly understood that notice under section 143(2) has to be mandatorily

issued within the time limit prescribed under the Income Tax Act. The ld. A/R

placed reliance on the decision of Hon’ble Allahabad High Court in the case of CIT

vs. Salarpur Cold Storage (Pvt.) Ltd. (2015) 228 Taxman 48 (Allahabad) wherein the

Hon’ble High Court held that Notice issued beyond specified period. The AO issued

notice u/s 143(2) of the IT Act, 1961 on 06.10.2009 which was beyond period

prescribed under section 143(2) of the Act which was till 30.09.2009. Although the

assessee had co-operated with proceedings but section 292BB of the Act would not

save a situation where the notice itself had not been issued before the expiry of the

period of limitation since it could only cure a defect of service within the stipulated

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period. Failure to issue a notice within the prescribed period would result in the AO

assuming jurisdiction contrary to law. Therefore, assessment order passed under

section 143(3) was invalid. The ld. A/R also placed reliance on the decision of ITAT

Indore Bench in the case of Servite Sisters Society vs. ACIT (Ind-Trib.) (2010) 130

TTJ 0096 wherein the Tribunal held that the notice under section 143(2) served after

the expiry of limitation is not a valid and the assessment passed in pursuance of an

invalid notice is illegal and void. Consequently the assessment passed by the AO is

cancelled. Reliance is placed on the decision of Lucknow Bench of the Tribunal in

case of Tirupati Mercantile Ltd. vs. Dy. CIT (Luck-Trib.) (2004) 090 TTJ 0436)

wherein the Tribunal held that the issue of notice u/s 143(2) is beyond limitation

hence assessment cannot be said to be validly made. Under the circumstances, the

assessment order being void ab initio, therefore, question of confirmation thereof

does not arise and is liable to be quashed. The Hon’ble Supreme Court in the case of

ACIT vs. M/s. Hotel Blue Moon (2010) 321 ITR 362 (SC) has considered the effect of

section 143(2) of the IT Act and held as under :-

“ If an assessment is to be completed u/s 143(3), notice under section 143(2) should be issued within one year from the date of filing of return. Omission on the part of the AO to issue notice u/s 143(2) cannot be a procedural irregularity and the same is not curable and therefore, the requirement of notice u/s 143(2) cannot be dispensed with.”

The ld. D/R furnished the following case laws in support of the claim of the

revenue :-

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Sudev Industries Limited vs. CIT (2018) Taxman.com 109 (SC)

Kachwala Gems vs. JCIT (2007) 158 Taxman 71 (SC) CIT vs. Premium Capital Market & Investment (2006) 151 Taxman 194 (MP)

CIT vs. Laxman Das Khandelwal (2019) 108 Taxman. Com 183 (SC)

On perusal of the above judgments, we find that none of the above cases applicable

to the facts of the case of the assessee.

The Hon’ble Supreme Court in the case of ACIT vs. Hotel Blue Moon (supra)

while considering the requirement of notice under section 143(2) in the block

proceedings has held in para 15 to 18 as under :-

“15. We may now revert back to Section 158 BC(b) which is the material provision which requires our consideration. Section 158 BC(b) provides for enquiry and assessment. The said provision reads "that the assessing officer shall proceed to determine the undisclosed income of the Block period in the manner laid down in Section 158 BB and the provisions of Section 142, sub- section (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be, apply." An analysis of this sub section indicates that, after the return is filed, this clause enables the assessing officer to complete the assessment by following the procedure like issue of notice under Sections 143(2)/142 and complete the assessment under Section 143(3). This Section does not provide for accepting the return as provided under Section 143(i)(a). The assessing officer has to complete the assessment under Section 143(3) only. In case of default in not filing the return or not complying with the notice under Sections 143(2)/142, the assessing officer is authorized to complete the assessment ex- parte under Section 144. Clause (b) of Section 158 BC by referring to Section 143(2) and (3) would appear to imply that the provisions of Section 143(1) are excluded. But Section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under Section 143(2). However, if an assessment is to be completed under Section 143(3) read with Section 158-BC, notice under Section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2)

10 ITA NO. 501/JP/2015 M/s. Handmade Paper & Board Industries, Jaipur.

cannot be dispensed with. The other important feature that requires to be noticed is that the Section 158 BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the assessing officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This Section even speaks of subsections which are to be followed by the assessing officer. Had the intention of the legislature was to exclude the provisions of Chapter XIV of the Act, the legislature would have or could have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the assessing officer, if for any reason, repudiates the return filed by the assessee in response to notice under Section 158 BC(a), the assessing officer must necessarily issue notice under Section 143(2) of the Act within the time prescribed in the proviso to Section 143(2) of the Act. Where the legislature intended to exclude certain provisions from the ambit of Section 158 BC(b) it has done so specifically. Thus, when Section 158 BC(b) specifically refers to applicability of the proviso thereto cannot be exclude. We may also notice here itself that the clarification given by CBDT in its circular No.717 dated 14 August, 1995, has a binding effect on the department, but not on the Court. This circular clarifies the requirement of law in respect of service of notice under sub-section (2) of Section 143 of the Act. Accordingly, we conclude even for the purpose of Chapter XIV-B of the Act, for the determination of undisclosed income for a block period under the provisions of Section 158 BC, the provisions of Section 142 and sub-sections (2) and (3) of Section 143 are applicable and no assessment could be made without issuing notice under Section 143(2) of the Act. However, it is contended by Sri Shekhar, learned counsel for the department that in view of the expression "So far as may be" in Section 153 BC(b), the issue of notice is not mandatory but optional and are to be applied to the extent practicable. In support of that contention, the learned counsel has relied on the observation made by this Court in Dr. Pratap Singh's case [1985] 155 ITR 166 (SC). In this case, the Court has observed that Section 37(2) provides that "the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Section 37(2). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in Section 165 has to be generally followed. The expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. The learned counsel for the respondent has brought to our notice the observations made by this Court in the case of Maganlal Vs. Jaiswal Industries, Neemach and Ors., [(1989) 4 SCC 344], wherein this Court while dealing with the scope and import of the expression "as far as practicable" has stated "without anything more the expression `as far as possible' will mean that the manner provided in the code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied." 16. 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

11 ITA NO. 501/JP/2015 M/s. Handmade Paper & Board Industries, Jaipur.

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. 17. Section 158BH provides for application of the other provisions of the Act. It reads : "Save as otherwise provided in this Chapter, all the other provisions of this Act shall apply to assessment made under this Chapter". This is an enabling provision, which makes all the provisions of the Act, save as otherwise provided, applicable for proceedings for block assessment. The provisions which are specifically included are those which are available in Chapter XIV-B of the Act, which includes section 142 and sub-sections (2) and (3) of section 143. 18. On a consideration of the provisions of Chapter XIV-B of the Act, we are in agreement with the reasoning and the conclusion reached by the High Court.”

Thus the requirement of notice under section 143(2) of the Act is a mandatory

condition and cannot be dispensed with. It was also held that the omission on the

part of the AO to issue notice under section 143(2) within the prescribed time limit

cannot be a procedural irregularity and same is not curable. The ld. D/R has

contended that the assessee has participated in the assessment proceedings and did

not raise any objection. Therefore, once the assessee has submitted to the

jurisdiction of the AO, then it cannot raise objection at this stage. We do not agree

with this contention of the ld. D/R because in the case in hand what is absent is the

issuance of notice under section 143(2) within the prescribed time limit and not the

service of the notice issued by the AO is disputed by the assessee. Only in the case

where the notice issued under section 143(2) was disputed by the assessee on the

point of service of the said notice but the fact of issuance of notice is already

available on record, in such a case if the assessee has participated in the assessment

proceedings in response to the notice under section 143(2), then subsequently the

assessee cannot take the objection of notice issued under section 143(2) was not

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properly served on the assessee. Since it is a case of non-issuance of notice within

the prescribed time under section 143(2), therefore, the initiation of scrutiny

proceedings itself was without jurisdiction conferred by the provisions of section 143

of the Act. The Hon’ble Kerala High Court in the case of Travancore Diagnostics Pvt.

Ltd. vs. ACIT, 390 ITR 167 (Kerala) has dealt with the issue of validity of

reassessment order passed by the AO without issuing notice under section 143(2) in

para 33 & 34 as under :-

“33. The extended question then is whether even if the assessee is deemed to have participated in the proceedings under Section 143, even without the Assessing Officer having issued the mandatory notice, would the Revenue be entitled to the benefit provided under Section 292BB of the Act. Section 292BB creates an estoppel against the assessee in claiming that no notice has been served on him, if he has participated in the proceedings. However, the said section does not in any manner grant any privilege to the Assessing Officer in dispensing with the issuance of a notice under Section 143(2) of the Act. Since the jurisdiction under Section 143 is founded on the issuance of a notice under Section 143(2), the assessing officer could have assumed jurisdiction only after issuing a notice under Section 143 (2). Even the participation of the assessee would not provide the benefit under Section 292BB to the Revenue. The requirement that a notice be issued is mandatory and the Assessing Officer has no other option but to issue the notice before commencing the jurisdiction. Here, we draw support from the judgment of the Hon'ble Supreme Court in Asstt. CIT v. Greater Noida Industrial Development Authority [2015] 379 ITR 14 (All.), wherein it was held as under: "Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued." 34. The only benefit that Section 292BB obtains to the assessing officer is that after the issuance of such notice the assessee appears and participates in the proceedings, then he shall not he heard, subject to the proviso to the said section, that he had not been properly served with notice. We have no hesitation in holding that the Assessing Officer can claim and avail the benefit under Section 292BB and the assessee will be burdened by the rigour of estoppel contained therein only after a notice under Section 143(2) had been validly issued. When it is virtually admitted that no such notice had been

13 ITA NO. 501/JP/2015 M/s. Handmade Paper & Board Industries, Jaipur. issued, the Assessing Officer loses even the authority to enter into the jurisdiction under Section 143 and the participation or otherwise of the assessee would be of no avail. It is here that the words of Rowlat, J. vide supra in paragraph 5 of this judgment assumes climataric importance because in taxation nothing is to be intended and nothing can be presumed. If a notice under Section 143(2) has not been issued, the Assessing Officer cannot claim the benefit under Section 292BB and the claim that the earlier notice extracted in paragraph 29 of the judgment was intended to be the notice issued under Section 143(2) and that substantial compliance under Section 143(2) must be inferred, cannot be countenanced.”

Accordingly, in view of the facts and circumstances of the case when the AO has

passed the assessment order without properly issuing notice as prescribed under

section 143(2), then the assessment order is not sustainable in law and the same is

invalid. Hence, following the decision of the Hon’ble Supreme Court as well as of the

Hon’ble High Courts as referred hereinabove, we quash the impugned assessment

order passed by the AO as well as the order passed by the ld. CIT (A). Since we

have quashed the assessment order itself, therefore, the other grounds raised by the assessee become infructuous and we do not propose to go into the other grounds.

Order pronounced in the open Court on 12/04/2022.

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14 ITA NO. 501/JP/2015 M/s. Handmade Paper & Board Industries, Jaipur.

आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- M/s. Handmade Paper & Board Industries, Jaipur. 2. izR;FkhZ@ The Respondent-The ACIT Circle-7, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File {ITA No. 501/JP/2015} vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत