AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1588
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....nds in its Cross Objection. 1. That the ld .CIT(A) erred in law and facts of the case by dismissing the appeal of the appellant without appreciating the fact that the notice u/s. 147 of the Act has been issued on the basis of information from investigation wing and it is bad in law and void ab intio. 2. That the ld. CIT(A) erred in law and in the facts of the case by dismissing the ground of the appellant even though no notice u/s. 143(2) of the Act has been issued by the A.O. while framing assessment u/s. 143(3) r.w.s 147 of the Act. 2. At the outset, we note that there was the inordinate delay in filing the CO by the assessee for 785 days. Therefore, the assessee moved a condonation petition by way of furnishing the affidavit duly notarized dated 19 February 2019 stating that it succeeded in the appeal filed by it before the learned CIT (A). Therefore, it was under the impression that there is no need to file any appeal/cross objection against the appeal filed by the Revenue against the order of the ld. CIT-A. However, at the time when the appeal of the Revenue came up for the hearing, it was realized to file the cross objection against the appeal of the Revenue. According....
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....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) 4. 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) 5. 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. 6. 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 fo....
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....antial 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. From the above judgment of the Hon'ble Apex Court, we note that the substantial justice deserves to be preferred rather than deciding the matter on the basis of technical defect. 4.4 We also note that there is no allegation from the Revenue that the CO by the assessee was not filed within the time deliberately. Therefore, we are inclined to prefer substantial justice rather than technicality in deciding the issue. 4.5 We also find that if we reject the application of the assessee for condoning the delay then it w....
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.... authorities below. 11. We have heard the rival contentions of both the parties and perused the materials available on record. The provisions of section 148 of the Act states that the return filed in response to the notice issued under section 148 of the Act shall be subject to the provisions applicable to the return as furnished under section 139 of the Act. 11.1 Similarly, the provisions of section 143(2) of the Act mandates that, where a return has been furnished under section 139 of the Act or in response to the notice issued under section 142(1) of the Act, the AO if considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid tax in any manner, he shall serve a notice upon the assessee. 11.2 A conjoint reading of both the provisions makes compulsory to issue a notice under section 143(2) of the Act in respect of the proceedings initiated under section 147 of the Act. In this regard, we find support and guidance from the judgement of Hon'ble Gujarat High Court in case of PCIT vs. Marck Bioscinces Ltd reposted in [2019] 106 taxmann.com 399 (Gujarat) wherein it was held as under: "20. ....
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....return of income and hence, section 292BB of the Act would not be attracted." 11.3 Thus, we note that the AO can acquire the jurisdiction for the assessment under section 147 of the Act only if the notice under section 143(2) was issued upon the assessee. In the absence of issuance of such notice, the proceedings initiated under section 147 of the Act are void-ab-initio. Such defect cannot be cured even under the provisions of section 292 BB of the Act. It is because the provision of section 292BB of the Act deals with the service of the notice. The relevant provision of section 292BB of the Act reads as under: "Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that ....
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.... section 143(2) of the Act is not sustainable. Accordingly, we quash the same. Hence, the ground raised by the assessee in the CO is allowed. In the result, the CO of the assessee is partly allowed. Coming to the Revenue's appeal bearing ITA No. 2854/AHD/2016 for the assessment 2008-09 13. At the outset, we note that we have already held that the assessment framed under section 147 read with section 143(3) of the Act vide order dated 24-11-2015 is not sustainable in the CO filed by the assessee in the paragraph No. 11 & 12 of this order. As the assessment itself has been held as invalid, the appeal filed by the Revenue is not maintainable. Accordingly we dismiss the same. In the result, the appeal filed by the Revenue is dismissed. Coming to the Revenue's appeal bearing ITA No. 1809/AHD/2017 and 1810/AHD/2017 for the assessment 2008-09 14. At the outset, we note that we have already held that the assessment framed under section 147 read with section 143(3) of the Act vide order dated 24-11-2015 is not sustainable in the CO filed by the assessee in the paragraph No. 11-12 of this order. However, the question arises whether the penalty can be levied for the contravention of t....