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2022 (10) TMI 166
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....y in law. This is particularly considering that the fact of his father's death (on 15/09/2015, death certificate at PB-1, pg. 1) was duly informed to the Assessing Officer (AO) in September, 2015 itself by the present assessee, the only son of his father, also participating in the proceedings, and for which Shri Ghai would refer to para 4 of the assessment order. An assessment which is null and void has no existence in law and, thus, cannot be revised. 3. We have heard the parties, and perused the material on record. 3.1 We may, at the outset, express our complete agreement with the principle of law on which the assessee's argument is predicated, i.e., there could be no revision of an assessment which is a nullity in law, and which objection could be validly raised in the collateral (revision) proceedings as well. The principle of law at work is governed by the legal maxim "sublato fundamento cadit opus", i.e., when the cause (foundation) is removed, the effect (consequent action) ceases. As explained by the Apex Court in Karan Singh vs. Chaman Paswan, AIR 1954 SC 304, the order passed by an authority without jurisdiction is a nullity, and it's invalidity can be challenged wh....
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.... assessment, which is legally firm and, rather, also saved by sec. 292B of the Act. The assessment in fact as well as in law is on the incumbent assessee as the LR of his father, late MKJ, which would not get lost merely because of omission to correctly record the name of the assessee. The matter is in principle well-settled, and to exhibit which reference is made to the decisions in CIT v. Kaushalyabai v. CIT [1995] 238 ITR 1008 (MP) and Swarn Kanta v. CIT [1989] 176 ITR 291 (P&H). The issue/s involved, it may be appreciated, is of a valid assumption of jurisdiction and grant of proper opportunity, neither of which is in dispute here. As explained in CIT v. Sumantbhai C. Munshaw (Decd) [1981] 128 ITR 142 (Guj), rendered with reference to a host of judicial precedents, including by the Apex Court, where there is no lack of jurisdiction, as in the instant case, the proceedings cannot be questioned where the LR is impleaded or otherwise joins the proceedings, and is allowed opportunity of being heard before passing the order under reference; the defects in procedure - except where fundamental, affecting the jurisdiction, being saved by sec. 292B. Reference therein is also made to ....
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....ment proceedings, stretching to over a year, and without raising any issue qua the service of notice u/s. 143(2), was construed by the Hon'ble Court as a valid service and, in any case, as disentitling the assessee to raise the issue of service of the said notice - a mixed question of fact and law, for the first time before the Tribunal. The same, it may be noted, is precisely what s.292BB, inserted on the statute w.e.f. 01/04/2008, deems. The function of a notice is to put the assessee to notice, explained per a series of decisions by the Apex Court, toward which we may refer to the decisions in CST v. Subash & Co. (CA No. 1374/2003, dated 17/2/2003), as indeed CIT v. Jai Prakash Singh [1996] 219 ITR 737 (SC), itself rendered upon considering the law explained per judicial precedents. The same, sure, did not find favour with the Hon'ble Court in Maruti Suzuki Ltd. (supra), but that was only for the reason that the notice u/s. 143(2), on the basis of which jurisdiction stood assumed, was issued in the name of the amalgamating company, no longer in existence, so that there was no valid of assumption of jurisdiction. Reference in this context, also made during hearing, be mad....
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....s been understood not to require any specific show-cause notice to be served on the assessee. Rather, what is required under the provision is an opportunity of hearing to the assessee. The two requirements are different: the first would comprehend a prior notice detailing the specific grounds on which revision of the assessment order is tentatively being proposed. Such a notice is not required. There is nothing in the section to raise the notice to the status of a mandatory show-cause notice affecting the initiation of the exercise in the absence thereof or to require the Commissioner to confine himself to the terms of the notice and foreclosing consideration of any other issue or question of fact. This is not the purport of section 263. What is contemplated by section 263, is an opportunity of hearing to be afforded to the assessee. Failure to give such an opportunity would render the revisional order legally fragile not on the ground of lack of jurisdiction but on the ground of violation of principles of natural justice. While the Commissioner is free to exercise his jurisdiction on consideration of all relevant facts, a full opportunity to controvert them and to explain....
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....nication to the AO was on 19/03/2016, i.e., while filing the return of his late father for AY 2015-16. The same is, thus, admittedly after the impugned assessment and, further, would not form part of the assessment record for the relevant year. Further, the same is not a communication of the change in address per se, but filing the return for a later year with a changed address. There is also no claim, or nothing on record to show, that the change of address was, as required by law to, intimated u/s. 139A. (refer: Pr. CIT v. I-Ven Interactive Ltd. [2019] 418 ITR 662 (SC)). There is, thus, no positive material on record as to the assessee communicating the AO the change in his address; rather no claim in its respect. On the contrary, there is positive material on record of the assessee having been served the notice u/s. 263, and which cannot be countered by a bald, much less inconsistent claim by the assessee. In our view, there has been service of notice inasmuch as the same, where unserved, would have come back unserved if, as stated by Shri Ghai, the change of residence followed soon after the death of MKJ, and the premises was locked. Rather, there could in that case be no servi....
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.... assessee, in the ensuing proceedings, clarified vide his reply dated nil (PB-4, pgs. 2-4), stated to be filed on 03/02/2006, that the short deduction of tax at source was occasioned by a change in law by Finance (No. 2) Act, 2009, w.e.f. 01/10/2009, whereby a person making payment for carriage of goods may not deduct tax at source on the payee furnishing a certificate thereto to the effect that the trucks owned by him at any time during the relevant previous year did not exceed ten, as also his PAN (sec. 194C(6)). True, section 194C(7) simultaneously provides for furnishing a statement to the Pr. CIT concerned to that effect. However, the obligation to file the declaration in Form 15J with the Commissioner in terms of r. 29D became redundant consequent to the change in sec. 194C w.e.f. 01/10/2009. Non-compliance of the same would therefore not lead to a default in his obligation to deduct tax at source u/s. 194C and, consequently, to a disallowance u/s. 40(a)(ia). The same, thus, explains the non-deduction of tax at source on freight payment of Rs. 107.15 lacs to Akansha Singhai, Prop. Sagar Roadlines, without though inviting disallowance u/s. 40(a)(ia). Sh. Ghai would before us f....
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.... We shall take up both the aspects of the assessee's case, i.e., as before the AO and, accordingly, considered by the revisionary authority. True, the AO's order, being sans any inquiry and sub silentio in the matter, is per se erroneous and prejudicial to the interests of the Revenue. That is, there being nothing on record to exhibit a positive consideration of the matter, is itself indicative of non-application of mind. Even as the same stands since statutorily provided vide Explanation 2(a) to sec. 263 w.e.f. 01/6/2015, it represents the well-settled law, for which reference may be made to Gee Vee Enterprises v. CIT (Addl.) [1975] 99 ITR 375 (Del), rendered on a review of judicial precedents, which are legion, including by the Apex Court and the Hon"ble jurisdictional High Court. It, nevertheless, becomes incumbent on the revisionary authority to, even as he does in the instant case, state the areas on which the AO is to direct his inquiry, and issue finding/s on in the set aside proceedings, even as the same may not be exhaustive or, in a given case, only indicative. Our examination, finding the assessment dated 17/2/2016 as having been thus validly subject to revision by the l....
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.... to the non-availability of the prescribed form; the erstwhile Form 15J u/r. 29D having been discontinued w.e.f. 01/10/2009. The AO accepts it, i.e., inferably, even as he did not, as afore-noted, issued any finding in the matter. The Pr. CIT finds the same unacceptable due to, even so, the failure to furnish Form 26Q, failing which the benefit of the changed law could not be extended, as had been per the impugned assessment. 5.7 In our considered view, the arguments advanced, both for and against, by either side, are untenable. There is nothing in law to contend that Form 15J, or the relevant rule (r. 29D), stands withdrawn w.e.f. 01/10/2009. The same stands withdrawn only by IT(Twenty First Amendment Rules, 2021), w.e.f. 29/7/2021. The question of the assessee filing Form 26Q instead, as the ld. Pr. CIT states, is an equally invalid statement. The assessee stating of having furnished before the AO in the reassessment proceedings the declaration/s received from the contractor, Akansha Singhai, to the effect that she does not own more than ten goods carriages at any time during the relevant previous year (even assuming she to be the person allowed the entire credit for Rs. 107.1....
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.... the non-compliance by the assessee of sec. 194C(7), modify his reference to Form 26Q, to Form 15-J. We have considered it relevant to specify the correct Form despite the admission by the assessee of non-compliance of s. 194C(7) as, in the absence of a prescribed Form, containing the prescribed particulars, along with the prescription as to time by which, and authority before whom, it is to furnished, the same could not possibly be complied with. 5.8 Finally, we may consider the assessee's claim before us of s. 194C(7) being independent of s. 194C(6), so that even a non-compliance of the former would not imply the assessee being in default for non-deduction of tax at source. Toward this, we have firstly found the claim of compliance of s. 194C(6), as it stood at the relevant time, to be false. Two, the argument of compliance of s. 194C(7) as not relevant for the purpose, is, before us, misplaced. The ld. Pr. CIT has set aside the assessment for proper consideration and a decision in accordance with law, so that the proper forum for the said argument by the assessee would be before the assessing authority in the set aside proceedings. It would be a different matter, we clarify, ....