2015 (5) TMI 516 - AT - Income Tax

Assessment order declared void ab initio for lack of notice under section 143(2). Appeals on incentives paid and share capital additions dismissed.

The tribunal declared the assessment order void ab initio due to the non-issuance of a notice under section 143(2), following precedents that such ... Validity of re-assessment u/s 147 - non serving notice u/s 143(2) - Held that:- The assessment in question is invalid because of lack of jurisdiction of the Assessing Officer as the revenue has failed to show that the notice u/s 143(2) was served on the assessee within the stipulated period. Accordingly, we quash/ set aside the assessment in question. Also see ITO Vs. Naseman Farms Pvt. Ltd.[2015 (4) TMI 764 - ITAT DELHI ] - Decided in favour of assessee. Issues Involved:1. Validity of the assessment order due to non-issuance of notice under section 143(2).2. Deletion of additions made by the AO regarding incentives paid.3. Deletion of additions made by the AO under section 68 regarding share capital.Detailed Analysis:1. Validity of the Assessment Order due to Non-Issuance of Notice under Section 143(2):The assessee raised a cross-objection challenging the validity of the assessment order on the grounds that no notice under section 143(2) was issued. The counsel for the assessee cited several case laws to support the argument that the absence of such a notice renders the assessment order invalid. The department's representative argued that as per section 292BB, the assessee is precluded from raising this objection since it appeared and cooperated in the proceedings. However, the tribunal noted that section 292BB is applicable from AY 2008-09 onwards, whereas the assessment year under consideration is 2003-04. The tribunal also observed that the issue of non-issuance of notice under section 143(2) is a mixed question of law and fact that goes to the root of the jurisdiction to pass the assessment order. The tribunal relied on various judicial precedents, including the decision in the case of M/s Silver Line, which held that non-issuance of notice under section 143(2) invalidates the assessment order. Consequently, the tribunal allowed the cross-objection and declared the assessment order void ab initio.2. Deletion of Additions Made by the AO Regarding Incentives Paid:The revenue appealed against the CIT(A)'s decision to delete the addition of Rs. 57,21,746/- out of the total Rs. 2,67,25,498/- claimed as incentives paid to 19 parties. The AO had made this addition on the grounds that the assessee failed to substantiate the payments by providing details such as mode and dates of payments. The tribunal, however, did not delve into the merits of this issue as it became infructuous due to the assessment order being declared void ab initio.3. Deletion of Additions Made by the AO Under Section 68 Regarding Share Capital:The revenue also contested the CIT(A)'s deletion of Rs. 44,500/- out of the total Rs. 3,44,500/- added under section 68 for unexplained share capital. The AO had made this addition due to the assessee's failure to furnish documentary evidence to substantiate the issue of shares and raising of share capital. Similar to the issue of incentives, the tribunal did not address the merits of this ground since the assessment order was declared void ab initio, rendering the department's appeal infructuous.Conclusion:The tribunal's primary focus was on the procedural validity of the assessment order. The non-issuance of a mandatory notice under section 143(2) was deemed a fatal flaw, leading to the assessment order being declared void ab initio. Consequently, the grounds raised by the revenue regarding the deletion of additions by the CIT(A) were rendered infructuous. The tribunal's decision underscores the importance of adhering to procedural requirements in assessment proceedings.