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2017 (2) TMI 1276 - HC - Income TaxAssessment u/s 153A - merely quoting a wrong section will not render assessment order void ab initio and that such mention of a wrong section is a defect curable u/s 292B - Held that - A bare reading of Section 153A shows that search having been conducted on 10.11.2005, financial year is 2005-06 and A.Y. 2006-07. As per Section 153A (1) (b), assessment or re-assessment could have been done in respect to six Assessment Years immediately preceding the assessment year relevant to the preceding year in which such search is conducted or requisition is made. It brings in period from Assessment Years 2000-01 to 2005-06. Earlier, special procedure for assessment of such cases was given in Chapter XIV-B. It is deleted by virtue of Section 158 (BI) inserted by Finance Act, 2003, w.e.f. 01.06.2003. The provisions of Chapter XIV-B have been made inapplicable where search is initiated under Section 132 or books of account, document or any assets are requisitioned under Section 132A after 31.05.2003. Therein concept of block assessment as defined in Section 158B, included the period up to the date of commencement of search or date of requisition in the previous year, the said search was conducted or requisitioned or made, but this is missing in Section 153A. Thus assessment under Section 153A for A.Y. 2006-07 is not sustainable. Question no.1 is therefore answered by holding that mere mention of a wrong provision will not deny jurisdiction to the authority, if it otherwise has, but this aspect has no application to the present case. Question no.2 is answered against appellant.
Issues Involved:
1. Whether the Income Tax Appellate Tribunal (ITAT) was justified in dismissing the appeal of Revenue by ignoring the fact that quoting a wrong section does not render the assessment order void ab initio. 2. Whether ITAT was justified in dismissing the appeal of Revenue by ignoring relevant provisions of Section 153(B)(1)(b) regarding the time limit for completion of search assessment for the current year. Issue-wise Detailed Analysis: Issue 1: Validity of Assessment Order Despite Wrong Section Quoted The appellant contended that the ITAT erred in dismissing the Revenue's appeal by ignoring that quoting a wrong section does not render the assessment order void ab initio, as defects are curable under Section 292B of the Income Tax Act, 1961. The court examined precedents, including the Supreme Court ruling in *Collector of Central Excise v. Pradyumna Steel Limited*, which held that mentioning a wrong provision does not invalidate the exercise of power if the authority has the power under a different provision. However, the court distinguished this case, emphasizing that the assessment order was specifically served under Section 153A, and jurisdiction for making an assessment under Section 153A read with Section 153C is different from that under Section 143(2). The court concluded that the Tribunal rightly upheld the CIT(A)'s decision, noting that the assessment for the relevant year could not be made under Section 153A. Issue 2: Jurisdiction and Time Limit for Completion of Search Assessment The second issue revolved around whether the ITAT ignored the relevant provisions of Section 153(B)(1)(b) regarding the time limit for completion of search assessment for the current year. The court analyzed Section 153A, which mandates the assessment or reassessment of six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted. The court noted that the search was conducted on 10.11.2005, making the financial year 2005-06 and the assessment year 2006-07. Therefore, the assessment could only pertain to the six preceding assessment years (2000-01 to 2005-06). The court observed that the CIT(A) correctly quashed the order for the assessment year 2006-07, as the Assessing Officer had no jurisdiction to pass the order under Section 153A. Tribunal's Observations: The Tribunal discussed the jurisdictional aspect, noting that the provisions of Section 153A empower the Assessing Officer to proceed with assessments in search cases, while Section 143(2) requires giving the assessee an opportunity to support its return before making an assessment under Section 143(3). The Tribunal concluded that the CIT(A) was justified in holding that the Assessing Officer had no jurisdiction to pass an order under Section 153A for the assessment year in question. Conclusion: The court agreed with the Tribunal's view, dismissing the appeals due to a lack of merit. It held that the mere mention of a wrong provision does not deny jurisdiction if the authority otherwise has it, but this principle did not apply in the present case. Consequently, both questions were answered against the appellant, and the appeals were dismissed.
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