2016 (9) TMI 1441 - AT - Income Tax

Validity of reopening of assessment - period of limitation - assessee was searched u/s 132 whereas the assessment after search proceedings was framed u/s 143(3) read with section 148 instead of 143(3) read with 153A - Held that - The issue of assessment being barred by limitation has been decided by the decision of co-ordinate bench of this Tribunal in assessee s own case in assessment year 2004-05 in the same search proceedings wherein it has been held that assessment as framed by the AO was invalid and barred by limitation.

Summary

Issues Involved:
1. Non-consideration of additional ground raised by the assessee regarding the assessment order being barred by limitation.
2. Validity of assessment proceedings initiated under section 148 instead of section 153A.
3. Applicability of section 292B to cure defects in the assessment process.

Issue-Wise Detailed Analysis:

1. Non-consideration of Additional Ground Raised by the Assessee:
The primary issue raised by the assessee was that the assessment order passed under section 143(3) read with section 147 was barred by limitation. The assessment order was passed on 29.12.2006, whereas the due date for passing the order was 31.03.2006 as per the provisions of Section 153 of the Income Tax Act, 1961. The Tribunal noted that this issue had already been decided in favor of the assessee in its own case for the assessment year 2004-05 (ITA No.2968/M/2011), where it was held that the assessment framed by the AO was invalid and barred by limitation.

2. Validity of Assessment Proceedings Initiated under Section 148 Instead of Section 153A:
The Tribunal examined whether the proceedings initiated under section 148 could be treated as proceedings under section 153A. The Tribunal found that the AO had taken contradictory stands regarding whether a search was conducted under section 132A. The Tribunal cited the case of Abhay Kumar Shroff (290 ITR 114) and Saraya Industries Ltd. (306 ITR 189) to emphasize that post-31.05.2003, assessments in search cases must be completed under section 153A. The Tribunal concluded that since the AO had issued notices under section 148 instead of section 153A, the assessments were invalid.

3. Applicability of Section 292B to Cure Defects in the Assessment Process:
The Tribunal discussed the scope of section 292B, which allows for the curing of technical defects in assessment proceedings. However, it emphasized that section 292B cannot cure jurisdictional defects. The Tribunal cited various cases to illustrate that fundamental infirmities, such as issuing notices under the wrong section, cannot be rectified under section 292B. The Tribunal concluded that the mistake of issuing notices under section 148 instead of section 153A was a jurisdictional error and could not be cured by section 292B.

Conclusion:
The Tribunal found that the assessment order was indeed barred by limitation and invalid. It held that the assessments should have been completed under section 153A due to the search conducted under section 132A. The Tribunal also ruled that section 292B could not be applied to cure the jurisdictional defect of issuing notices under the wrong section. Consequently, the Tribunal set aside the order of the CIT(A) and allowed the appeal of the assessee. The assessment made by the AO was declared invalid and barred by limitation.