TaxTMI 
TaxTMI 
2024 (2) TMI 745
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....al), Bhopal") setting aside the assessment order passed u/s 147 r.w.s 143(3) dated 30.12.2019, is without jurisdiction, illegal, bad-in-law and void ab initio on account of several reasons, more particularly, owing to the reason that the jurisdiction u/s 263 has been assumed in respect of non-Est proceedings which is vitiated by non-issuance of notice u/s 143(2) of the Income Tax Act, 1961. 2. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Learned PCIT (Central), Bhopal has erred in holding that the order dated 30.12.2019 passed by the Learned A.O. u/s 147 r.w.s 143(3) of the Income Tax Act, 1961 was erroneous and prejudicial to the interests of revenue and thereby setting aside the same. 3. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Appellant submits that the order passed by the Learned A.O. was neither erroneous nor prejudicial to the Interest of the Revenue and hence the revision of the same by the Learned PCIT (Central), Bhopal u/s 263 of the Income Tax Act, 1961 is erroneous and bad-in-law. 4. Without prejudice to the above, on the facts and in the circumstances of t....
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.... (Central), Bhopal may kindly be quashed, and the appeal may kindly be allowed. 11. The appellant craves leaves to add or amend/ alter/ withdraw any or all above grounds of appeal. All the grounds of appeal are without prejudice to each other. 3. Briefly stated, the facts of the case are that the assessee is an individual, who had filed its return of income u/s 139 on 30/03/2013. The case of the assessee was reopened by issuing a notice u/s 148 on 30.03.2019. In response to the notice u/s 148 of assessee has filed his return of income on 01.06.2019 i.e., after 30 days from the date of notice u/s 148, declaring total income of Rs. 8,71,310/- shown in the return of income, which as it was accepted by the Ld AO. 4. The case of the assessee was subsequently perused by the Ld. PCIT (Central), Bhopal. On examination of assessment records Ld. PCIT has considered it appropriate to show cause the assessee u/s 263(1) of the I.T. Act, accordingly, a notice was issued on 14.01.2022, the contents of the notice issued u/s 163 are extracted as under: Notice u/s 263 of the Income Tax Axt, 1961- Show Cause- reg. Please refer to the above. Assessment order u/s 147 r.w.s 143 (3) of the In....
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....ccepted your self-cited recitals in the form of your submission. As regards, the affidavit submitted by your accountant, the same was also accepted by the AO without realising that affidavit is only a self-citing recital carrying no evidentiary value Unless it is cross examined as held by the Hon'ble Supreme Court in the case of Ayaaub Khan Noor Khan Pathan Vs State of Maharashtra & Other civil appeal no. 7728 of 2012 (reported in AIR 2013 SC/58/(2013)/SCC/465. In view of the above discussion, it becomes prima facie clear that the AO has passed the assessment order dated 30.12.2019 without making any enquiry or verification which he should have been made during the assessment proceedings making the assessment order prima facie erroneous in so far as it is prejudicial to the Interest of revenue within meaning of explanation 2(a) of section 263(1) of IT Act. Accordingly, you are hereby given an opportunity of being heard as per section 263(1) of the Income Tax Act, 1961 to present yourself in person or through an authorized representative or file submission through online mode on 24.01.2022 at 11:30 A.M. to explain your case before the Pr. Commissioner of Income Tax (Central), ....
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....was filed on 30.03.2013, copy of ROI along with Computation of Total Income is placed on Page No 1 to 4 of the Paper Book. (2) The Learned A.O issued notice u/s 148 on 30.03.2019, copy of notice u/s 148 is placed on Page No 5 of the Paper Book. The assessee duly filed the return of income in response to the notice u/s 148 electronically on 01.06.2019, copy of ITR acknowledgement along with Computation of Total Income filed in response to the notice u/s 148 is placed on Page No 6 to 9 of the Paper Book. The Learned A.O did not issue any notice u/s 143(2) of the Income Tax Act, 1961 as mandated u/s 143. (3) The Learned A.O passed the assessment order u/s 143(3) r.w.s. 147 vide order dated 30.12.2019, copy of the assessment order passed by the Learned A.O is placed on Page No 10 to 15 of the Paper Book. (4) Assessment was completed u/s 143(3) r.w.s. 147 only which is self-evident from the following:- Sl. No. Particulars Following Page No. of Paper Book- 2 1. Copy of order u/s 7(1) of the Right to Information Act, 2005 dated 09.08.2023 bearing F.N0. DCIT(Central1)/RPR/RT1/ 2023-24 passed by the Learned DCIT, Central Circle-I, Raipur 178-179 2. Copy of Income Tax Compu....
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....hopal issued notice u/s 263, copy of the notice dated 14.01.2022 is placed on Page No 16 to 18 of the Paper Book. The Learned PCIT could not have assumed jurisdiction u/s 263 in respect of non-Est proceedings which was vitiated by the vice of non- issuance of mandatory notice u/s 143(2). The assessee places reliance on following judicial pronouncements wherein it has been held that if the assessment order passed by the Learned A.O is bad-in-law and non-Est then the Learned PCIT cannot assume jurisdiction over such assessment order which does not exist in the eyes of law. S. N0. TITLE CITATION AUTHORITY Following age No. of the CLC 1. PCIT vs. Badal Prakash Jindal, HUF, Bargarh I.T.A. Nos. 8, 7, 9 & 10 of 2023 dated 02.03223 The Hon'ble High Court of Orissa at Cuttack 52 - 62 of LPB-3 2. Maruti Clean Coal and Power Ltd. vs. PCIT-I, Raipur ITA No. 55/ RPR/2021 dated 31.10.2022 The Hon'ble ITAT, Raipur Bench 63 - 120 of LPB-3 3. Minimax Commerce (P.) Ltd. vs. ACIT, Raipur (2021) 133 taxmann.com 188 Hon'ble ITAT, Raipur Bench 17-21 of LPB-I 4. Keshab Narayan Banerjee vs. CIT (1998) 66 CCH 0874 Hon'ble High Court of Calcutta 22 - 29 of LPB-I ....
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....Ltd. (2022) 326 CTR (Kar) 233 The Hon'ble High Court of Karnataka 25 -29 of LPB-3 6.1(f) Upon removal of defect, the date of filing of Return of Income is date of uploading of data electronically, assessee places reliance on following judicial pronouncements: - Sl. No TITLE CITATION AUTHORITY Following Page No. of the CLC 1. Atul Projects India (P) Ltd. vs. Union of India & Anr. (2019) 309 CTR (Bom) 392 The Hon'ble High Court of Bombay 30 - 32 of LPB-3 2. Travel Designer India (P) Ltd. vs. DCIT (2020) 315 CTR (Guj) 800 The Hon'ble High Court of Gujarat 33 - 41 of LPB-3 6.1(g) Assessing officer having not intimated any defect in the Return to the assessee and acted upon the return, he was not justified in treating the return as invalid on the ground of belated E-verification. Assessee places reliance on following judicial pronouncement: - Sl. No TITLE CITATION AUTHORITY Following Page No. of the CLC 1. Fibers & Fabrics International (P) Ltd. vs. DCIT (2016) 182 TTJ (Bang) 374 The Hon'ble ITAT, Bangalore 'C' Bench 42 - 51 of LPB-3 Second Argument: (7) Information received from Investigation Wing formed the basis for reas....
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.... Calcutta 76 - 103 6. Commissioner of Income Tax Vs. Max India Ltd. 2007 213 The Hon'ble 104 - 105 7. Commissioner of Income Tax vs. Nirav Modi (2017) 390 ITR 0292 The Hon'ble High Court of Bomba 106 - 112 8. Hill Queen Investment (P) Ltd. vs. PCIT (2021) 189 ITV) 139 (1<01) The Hon'ble High Court of Kolkata 113 - 130 Third Argument: (8) The assessment order passed u/s 147 r.w.s. 143(3) is bad-in-law also due to the following reasons: - 8.2 The proceedings were initiated based on borrowed satisfaction, in this regard, the assessee relies on following judicial pronouncements: - S. NO. TITLE CITATION AUTHORITY Following age No. of the CLC 1. PCIT vs. Meenakshi Overseas Ltd. (2017) 395 ITR 677 (Del) Hon'ble Hig Court of Delhi 119 - 127 of LPB-I 2. ACIT vs. Dhariya Construction Com an (2010) 328 ITR 515 (SC Hon'ble Supreme Court of India 128 - 128 of LPB-I 3. CIT vs. Kamdhenu Steel & Alloys Ltd. & Ors. (2012) 248 CTR (Del) 33 Hon'ble Hig Court of Delhi 129 - 152 of LPB-I 4. Sarthak Securities Co. Ltd. vs. ITO (2010) 329 ITR 110 (Del) Hon'ble Hig Court of Delhi 153 - 160 of LPB-I The Learned A.O did not carry out a....
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....provision is imposed on the assessee date of furnishing of the same. of s. 234A (3) clearly contemplates that a 'return of income' filed after the expiry of the stipulated time period shall still continue to be a 'return of income' filed by the assessee pursuant to the notice under s. 148. This view also stands fortified from the very fact that after the assessee had filed the 'return of income' pursuant to the notice under u/s 148 on 10th Aug., 2010, the same was acted upon by the AO and a Notice under s. 143(2) was issued to the assessee, followed by culmination of the same into an assessment under s. 143(3) r/w s 147 when issuance of a notice under s. 143(2) pre supposes the availability of a 'return of income' of the assessee on record, therefore, now when in the present case e AO acted upon the 'return of income' filed by the assessee, and issued a notice under s. 143(2), which thereafter had culminated into an assessment under s. 147 r/w s. 143(3), therefore, it would not be permissible on the part of the Revenue to turn around claim that no valid 'return of income' was filed by the assessee." 9. Ld. AR advanced another argument t....
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.... reproduced as under: "2.3. First, taking the addition ground taken by the appellant challenging the validity of order passed u/s.143(3)/148 as not return of income was filed by him either u/s.139 or u/s.147. As per the assessee in case of no return, the assessment cannot be made u/s.143(3)/147. On going through the assessment order, I find that AO has du/y issued notice u/s.142(1) on 16/09/2016 calling details/documents vide S/. No. (i) to (ix) of the notice. As per sub section 2 of Section 143 " whereas return has been furnished u/s.139 or in response to a notice in under sub section (1) of Section 142, the AO sha// serve on the assessee a notice requiring him either to attend the office of the AO or to produce or cause to be produce before the AO any evidence on which the assessee may re/y in support of the return". After the notice u/s.143(2) is issued, order is passed u/s.143(3). In the present case after issue of notice u/s.143(1) as discussed above, the AO has issued another notice dated 04/10/2016 requiring the assessee to attend the office persona//y or through any authorized representative along with the required information, documentary evidence, bank account etc. on ....
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....the order passed by the Assessing Officer u/s.143(3)/148 of the Act dated 21.11.2016 on the ground that notice u/s.142(1) of the Act, (supra) could safely be viewed/construed as a notice u/s.143(2) of the Act. In our considered view, the aforesaid observation of the CIT(Appeals) was absolutely out of context of the claim that was raised by the assessee before him. 8. Be that as it may, in our considered view, as stated by the assessee before the CIT(Appeals), and rightly so, in the absence of any return of income having been filed by him, no assessment u/s.143(3)/148 of the Act could have been framed in his hands. Adverting to the observation of the CIT(Appeals) that notice(s) issued u/s.142(1) of the Act, dated 16.09.2016 and 04.10.2016 could be viewed as a notice u/s.143(2) of the Act, though, is not germane to the claim of the assessee, but we may herein clarify that the same is even otherwise absolutely misconceived and misplaced. In our considered view, the framing of an assessment u/s.143(3) of the Act presupposes the issuance of a notice u/s.143(2), the existence of which by no means or stretch of imagination can be substituted by a notice issued u/s.142(1) of the Act. Ou....
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....Court of Orissa at Cuttack 2. Maruti Clean Coal and Power Ltd. vs. PCIT-I, Raipur ITA No. 55/ RPR/2021 dated 31.10.2022 The Hon'ble ITAT, Raipur Bench 3. Minimax Commerce (P.) Ltd. vs. ACIT, Raipur (2021) 133 taxmann.com 188 Hon'ble ITAT, Raipur Bench 4. Keshab Narayan Banerjee vs. CIT (1998) 66 CCH 0874 Hon'ble High Court of Calcutta 5. Parveen Kumar Mittal vs. PCIT (2021) 63 CCH 0256 Hon'ble ITAT, Chandigarh 6. Supersonic Technologies (P) Ltd. vs. PCIT (2019) 175 DTR 30 Hon'ble ITAT, Delhi Bench 7. Concord Infra Projects Pvt. Ltd. vs. PCIT (2021) 63 CCH 0117 Hon'ble ITAT, Kolkata Bench 8. Pioneer Distilleries Limited vs. PCIT-I, Aurangabad 479/PUN/2017 Hon'ble ITAT, Pune Bench 13. From the aforesaid list of case laws, identical issue, as the matter in the present case raised has been delt with by the coordinate bench of ITAT, Raipur, in the case of Maruti Clean Coal and Power Ltd. vs. PCIT-I, Raipur in ITA No. 55/RPR/2021 dated 31.10.2022, That, "Whether the assessee can challenge the validity of an assessment order during the appellate proceedings pertaining to examination of validity of order passed u/s 263" and "If the impugned....
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....erations and drawing support from a host of judicial pronouncements answered the said issue in the affirmative. For the sake of clarity, the relevant observations of the tribunal in context of the aforesaid issue are culled out as under: "8. Challenging the jurisdictional defects of assessment order for assailing the jurisdictional validity of the revision order passed u/ s 263: The first issue that arises for our consideration is whether the assessee can challenge the jurisdictional validity of order passed u/ s 143(3) in the appellate proceedings taken up for challenging the order passed u/ s 263? If we analyse the nature of both of these proceedings, which are under consideration before us, we find that the original assessment proceedings can be classified in a way as 'primary proceedings'. These are, in effect, basic foundational proceedings and akin to a platform upon which any subsequent proceedings connected therewith can Rest upon. The proceedings-initiated u/s 263 seeking to revise the original assessment order is off shoot of the primary proceedings and therefore, these may be termed as 'collateral proceedings' in the legal framework. The issue that ....
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....iability without authority of law. Therefore, the Courts have taken this view that jurisdictional aspects of the order passed in the primary proceedings can be examined in the collateral proceedings also. This issue is not res integra. This issue has been decided in many judgments by various courts, and some of them have been discussed by us in followings paragraphs. 8.2. In a matter that came up before Hon'ble Supreme Court in the case of Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] 1 SCR 117 the facts were that the appellant in that case had undervalued the suit at Rs. 2,950 and laid it in the court of the Subordinate Judge, Monghyr for recovery of possession of the suit lands and mesne profits. The suit was dismissed and on appeal it was confirmed. In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11. The value of the appeal was fixed at Rs. 9,980. A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the ....
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....Court (GOA Bench) in the case of Mavany Brothers vs CIT (Tax Appeal No 8 of 2007) in its order dt 17th April 2()15 wherein it was held that an issue of jurisdiction can be raised at any time even in appeal or execution. 8.5. The aforesaid principles, enunciated by the Apex Court in the case of Kiran Singh & Ors. v. Charnan Paswan & Ors, supra were reiterated by the Apex Court in the cases of Superintendent of Taxes vs Onkarmal Nathmal Trust (AIR 1975 SC 2065) and Dasa Muni Reddy v. Appa Rao (AIR 1974 SC 2089). In the first of these decisions, it was pointed out that revenue statutes protect the public on the one hand and confer power upon the State on the other, and the fetter on the jurisdiction is one meant to protect the public on the broader ground of public policy and, therefore, jurisdiction to assess or reassess a person can never be waived or created by consent. This decision shows that the basic principle recognized in Kiran Singh (supra) is applicable even to revenue statutes such as the Income Tax Act. Dasa Muni Reddy (supra) is a judgment where the principle of 'coram non judice' was applied to rent control law. It was held that neither the rule of Estoppel n....
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....as limited to the merits of the additions. In this view, the Tribunal accepted the Revenues plea. The assessee thereafter carried order of the Tribunal in reference before the Gujarat High Court. The High Court after considering various judgments of the Supreme Court on the point of jurisdiction to reopen the assessment and also after specifically discussing the judgment of the Supreme Court in Onkarma1Nathmal Trust (supra) and Dasa Muni Reddy (supra) held that the Tribunal was in error in holding that the Question of jurisdiction became final when it passed the earlier remand order. It was held that neither the Question of res judicata nor the rule of Estoppel could be invoked where the jurisdiction of an authority was under challenge. According to Hon'ble Gujarat High Court, the rule of res judicata cannot be invoked where the Question involved is the competence of the Court to assume jurisdiction, either pecuniary or territorial or over the subject matter of the dispute. Hon'ble High Court further held that since neither consent nor waiver can confer jurisdiction upon the Assessing Officer where it did not exist, no importance could be attached to the fact that the asses....
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....n, as clarified by Hon'ble Gujrat High Court in the case of P.V. Doshi, supra and Hon'ble Bombay High Court in the case of Jainarayan Babulal vs CIT, 170 ITR 399, the bench held as that if the block assessment itself is without jurisdiction then there is no Question of levy of any penalty u/s. 158BFA(2) and therefore it is open to the assessee to set up the Question of validity of the assessment in the appeal against the levy of penalty. 8.9. We also derive support from another judgement of Hon'ble Bombay High Court in the case of Inventors Industrial Corporation Ltd vs CIT 194 ITR 548 (Bombay) wherein it was held that assessee was entitled to challenge the jurisdiction of the AO to initiate re-assessment proceedings before the CIT(A) in the second round of proceedings, even though he had not raised it in earlier proceedings before the Assessing Officer or in the earlier appeal. 8.10. Thus, on the basis of aforesaid discussion we can safely hold that as per law, the assessee should be permitted to challenge the validity of order passed u/ s 263 on the ground that the impugned assessment order was non-Est, and we hold accordingly." (B). Answering the second issu....
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....ssment order, then it would imply extending/ granting fresh limitation for passing fresh assessment order. It is settled law that by the action of the authorities the limitation cannot be extended, because the provisions of limitation are provided in the same. 20. In view of above discussion, ground no.3 is allowed and revision order passed u/ s 263 is quashed." 10.2. It is further noticed by us that similar view has been taken by Chandigarh Bench of the Tribunal in the case of Steel Strips Ltd (supra). 11. Thus, after taking into account all the facts and circumstances of the case, we find that in this case, the original assessment order passed u/s 143(3) dt 24-10-2013 was null & void in the eyes of law as the same was passed upon a non-existing entity and, therefore, the Ld. CIT could not have assumed jurisdiction under the law to make revision of a non-Est order and, therefore, the impugned order passed u/ s 263 by the Ld. CIT is also nullity in the eyes of law and therefore the same is hereby quashed." It may at this stage be relevant and pertinent to point out that while for the aforesaid order of the tribunal had thereafter been approved by the Hon'ble High Co....
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....ire assessment would vitiated and would also be non-Est under the eye of Law. Therefore, decision of the Mumbai Bench would apply to the facts of the case. When assessment order itself is null and void based on non-Est revised return, the Ld. CIT could not have exercise jurisdiction under section 263 of the I T Act." We further find that the ITAT, Delhi in the case of Krishan Kumar Saraf Vs. Commissioner of Income Tax, Hissar, ITA No.4562/De1/2011, dated 24.09.2015 had also taken a similar view. It was observed by the tribunal that the CIT cannot revise an order which is non-Est in the eyes of law. In the said case the assessee in the course of the appellate proceedings which had originated from the order passed by the CIT under Sec. 263 of the Act had assailed the validity of the order passed u/ s 263, for the reason that the notice u/ s 143(2) was issued beyond the stipulated time period. The department objected to the aforesaid challenge thrown by the assessee to the validity of the assessment order on the ground that as the assessee had not challenged the assessment order, therefore, the same had attained finality. However, the said contention of the revenue was turned down ....
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....mitation cannot be extended, because the provisions of limitation are provided in the statute. 20. In view of above discussion, ground no. 3 is allowed and the revisional order passed u/ s 263 is quashed." We, thus, on the basis of our aforesaid deliberations read along with the aforesaid settled position of law concur with the Id. AR that now when the impugned order of reassessment under Sec. 143(3) r.w.s 147, dated 30.12.2018 in itself had been passed on the basis of invalid assumption of jurisdiction by the AO, and thus, is invalid and bereft of any force of law; or in fact non-Est in the eyes of law, therefore, the same could not have been revised by the Pr. CIT under Sec. 263 of the Act. 14. Taking shelter of the aforesaid decision in the case of Maruti Clean Coal and Power Ltd. (supra) of the ITAT, Raipur, Ld. AR submitted that the assessee has filed a valid return may be after the date as prescribed in the notice u/s 148 but the same cannot be considered as non-Est, as held in the case of Smt. Amina Ismile Rangari (supra), Therefore, the order passed u/s 143(3) r.w.s. 147 by the Ld AO in the present case should be branded as a non-Est assessment order on account of n....
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....sed and considered in the reassessment was answered by the assessee. However, the assessee has written in paragraph 7 of the said reply that he was not issued any notice u/s 143(2) of the Act. In the normal course, a detailed reply in the nature is furnished only after issuing a notice under section 143(2) of the Act. In any case, we find that after the assessee filed annexure A 1 reply, no further notice is required, because reply was already filed by the appellant. The procedure under section 143(2) of the Act is to ensure that an adverse order is issued only after proper opportunity is given to the assessee. In this case, it is conceded that the assessee got opportunity to file reply and detailed reply was in fact filed and the reassessment notice, and the final order were also issued within the time limit prescribed under the Act. 12. From the above, it is obvious that the procedure under Section 143(2) is intended to ensure that an adverse order is passed against the assessee only after affording the assessee a proper opportunity. Therefore, the Question to be considered is whether the assessee in case had such an opportunity. It is in this context, the notices that were is....
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.... of non-E-verification of the same. 21. Referring to aforesaid submissions, contentions, and evidence it was the argument of Ld. AR that the reopening assessment u/s 147 r.w.s. 143(3) was a non-Est assessment, illegal for the reason that the same was completed without issuing the mandatory notice u/s 143(2). It is further submitted that the Ld. PCIT has acted beyond the available jurisdictional rights with him to assume the powers to invoke revisionary proceedings u/s 263, wherein the assessment order which has been chosen to be revised itself was an assessment void ab initio and at nullity in the eyes of law. It was, therefore, the prayer of the assessee that the order u/s 263 is liable to be quashed. 22. We have considered the rival submissions, perused the material available on record and judicial pronouncements relied upon by the assessee as well as by the revenue. In the present case the admitted facts are that the assessee's case was reopened u/s 147/148 on 30.03.2019 by issuing of notice as per the provisions of the Act. The assessee was required to furnish a return in response to the said notice u/s 148 by 30.04.2019, however, the assessee has filed the requisite return b....
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....same would not render as invalid or non-Est in the eyes of law merely because it was filed with delay. Analogy in this respect has been duly discussed and decided by the coordinate bench of ITAT, Mumbai in the case of Smt. Amani Ismile Rangari (Supra) which in our opinion was the right approach to be adopted, accordingly, in the present case the return filed by the assessee though belatedly, which has been recognised by issuing a valid acknowledgement, subsequently the same was E-verified by the assessee and has been duly accepted by the e-portal of the department. The Assessing officer has acted upon such return therefore the same cannot be treated as a non-Est return. 24. The second question is regarding issuance of notice u/s 143(2) in completing the assessment u/s 147 r.w.s. 143(3), respectfully following the principle of law laid down by Hon'ble Apex Court in various cases based on which coordinate bench of ITAT, Raipur has taken a view in the case of Shri Dev Narayan Sahu (supra) wherein it has been decided that, issuance of notice u/s 143(2) is a sine-qua-non for framing of an assessment u/s 143(3) of the Act, this view is well supported by the judgment of Hon'ble Apex Cour....