2017 (11) TMI 1989 - AT - Income Tax

Validity of assessment u/s 143(3) - Question to be raised for the first time - issue the notice u/s 143(2) within 6 months from the end of the financial year in which the return is furnished - as argued notice u/s 143(2) issued by the AO is barred by limitation under proviso to section 143(2) - HELD THAT - Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. But as per the ratio laid down in NTPC case 1996 (12) TMI 7 - SUPREME COURT , the question of law can be raised at any stage. In the given case, it is not the issue of serving of notice but issue of notice to acquire jurisdiction to complete the assessment u/s 143(3). Hence, it is the question of law and not fact. Moreover, section 292BB cannot be applied in the given case because the issue is not serving of notice but issue of notice to acquire the jurisdiction to complete the assessment u/s 143(3). Therefore, in the given case, issue is not serving of notice but issue of notice within the period of limitation prescribed in proviso to section 143(2) to complete the assessment u/s 143(3). It is clear from the record that AO has issued the notice u/s 143(2) only on 20/10/2009 instead of issuing the notice on or before 30/09/2009. It clearly shows that the AO has no jurisdiction to complete the assessment u/s 143(3). Hence, the assessment completed u/s 143(3) cannot be passed without compliance with the mandatory requirement of notice being issued u/s 143(2), therefore, the assessment order in question is legally unsustainable and the same is hereby quashed. Appeal of assessee allowed.

Summary

Issues:
1. Validity of notice u/s 153A and assessment proceedings.
2. Addition of unexplained income and investments.
3. Barred by limitation notice u/s 143(2).

Issue 1: Validity of notice u/s 153A and assessment proceedings

The appeal raised concerns regarding the validity of the notice u/s 153A and subsequent assessment proceedings for AY 2008-09. The appellant contended that the initiation of assessment proceedings was not legal due to the absence of incriminating material found during the search. The appellant also challenged the assessment order's validity, arguing that the notice u/s 153A was invalid. The Tribunal analyzed the facts and applicable legal provisions, ultimately quashing the assessment order due to the lack of jurisdiction resulting from the improper issuance of the notice u/s 143(2) beyond the statutory period.

Issue 2: Addition of unexplained income and investments

The appellant disputed various additions made by the Assessing Officer, including discrepancies in the amount invested in the purchase of a site in Tirupati and unexplained receipts from different individuals. The Tribunal examined the arguments presented by both parties, highlighting inconsistencies in the assessment process and the failure to adequately explain the sources of income and investments. Ultimately, the Tribunal partially allowed the appeal, emphasizing the importance of substantiating financial transactions and sources of income to avoid unwarranted additions.

Issue 3: Barred by limitation notice u/s 143(2)

The appellant raised a legal ground concerning the notice u/s 143(2) being issued beyond the statutory limitation period. The Tribunal considered the provisions of section 143(2) and the implications of serving notices within the prescribed timeline. By citing relevant case law and analyzing the jurisdictional aspects of the assessment process, the Tribunal concluded that the assessment order was legally unsustainable due to the jurisdictional error caused by the delayed issuance of the notice u/s 143(2. Consequently, the Tribunal quashed the assessment order based on this procedural irregularity.

In summary, the Tribunal's judgment in the present case addressed multiple issues related to the validity of assessment proceedings, additions of unexplained income and investments, and the statutory limitations on issuing notices under relevant sections of the Income-tax Act. The Tribunal's detailed analysis and application of legal principles resulted in the partial allowance of the appeal, emphasizing the importance of procedural compliance and substantiating financial transactions in the assessment process.