2021 (12) TMI 1460 - AT - Income Tax

Scrutiny assessment - non issuance of notice u/s 143(2) was ever issued by the Department - whether curable defect u/s 292BB? - HELD THAT - Admittedly no notice u/s. 143(2) was issued by the AO having jurisdiction over assessee either prior to the assessment proceedings or during the assessment proceedings. We place reliance on the decision of NITTUR VASANTH KUMAR MAHESH 2019 (5) TMI 1557 - KARNATAKA HIGH COURT wherein Hon ble Court took similar view. Hon ble Court also held that provisions of section 292BB cannot cure such defect. Based on the above discussions we allow raised by the assessee and the order passed by the Assessing Officer u/s. 143(3) for year under consideration is held to be not legally sustainable. The assessment order dated 30.12.2016 is held to be Null in the eyes of law due to non-issuance of notice u/s. 143(2) by the Ld. AO who had jurisdiction over present assessee.

Summary

Issues Involved:
1. Validity of the assessment order due to non-issuance of notice under section 143(2) by the jurisdictional Assessing Officer.
2. Limitation period for serving the assessment order.
3. Legality of notice issued under section 143(2).
4. Additional grounds raised before the CIT(A).
5. Additions of trade advances.
6. Additions of sundry creditors.
7. Additions on account of unsecured loans.
8. Levy of interest under sections 234A, 234B, and 234C.

Issue-Wise Detailed Analysis:

1. Validity of the Assessment Order Due to Non-Issuance of Notice under Section 143(2):
The primary issue raised by the appellant was the non-issuance of a notice under section 143(2) by the jurisdictional Assessing Officer (AO). The appellant argued that the assessment proceedings were invalid as the notice was issued by an officer who did not have jurisdiction over the assessee. The Tribunal agreed with the appellant, citing the Supreme Court's decisions in CIT vs. Laxman Das Khandelwal and Hotel Blue Moon, which held that the issuance of notice under section 143(2) by the jurisdictional AO is mandatory for assuming jurisdiction to pass an assessment order under section 143(3). The Tribunal concluded that the absence of such notice is not a curable defect under section 292BB, which only addresses procedural defects and not the complete absence of notice. Consequently, the assessment order dated 30.12.2016 was held to be null and void.

2. Limitation Period for Serving the Assessment Order:
The appellant contended that the order was served with an inordinate delay, beyond the limitation period. The Tribunal did not specifically address this issue in detail, as the primary ground regarding the non-issuance of notice under section 143(2) was sufficient to annul the assessment order.

3. Legality of Notice Issued under Section 143(2):
The appellant argued that the notice under section 143(2) issued by an officer without jurisdiction was invalid. The Tribunal agreed, emphasizing that the jurisdictional AO must issue the notice to assume jurisdiction for assessment. The Tribunal referenced the Supreme Court's rulings to support this view and concluded that the assessment order was invalid due to the lack of a valid notice under section 143(2).

4. Additional Grounds Raised Before the CIT(A):
The appellant raised additional grounds before the CIT(A), including the validity of the notice under section 143(2) and the jurisdiction of the assessing officer. The CIT(A) did not adjudicate these grounds, focusing instead on the merits of the case. The Tribunal found this approach erroneous and emphasized the importance of addressing the legal grounds first, as they go to the root of the case.

5. Additions of Trade Advances:
The appellant challenged the additions of trade advances amounting to Rs. 1,40,08,810/-. The Tribunal did not delve into the merits of this issue, as the assessment order was annulled on legal grounds.

6. Additions of Sundry Creditors:
The appellant contested the additions of sundry creditors totaling Rs. 4,05,82,272/-. Similar to the trade advances issue, the Tribunal did not address the merits of this contention due to the annulment of the assessment order.

7. Additions on Account of Unsecured Loans:
The appellant disputed the additions of unsecured loans amounting to Rs. 1,30,98,413/-. The Tribunal did not examine this issue on merits, as the assessment order was invalidated on legal grounds.

8. Levy of Interest under Sections 234A, 234B, and 234C:
The appellant argued against the levy of interest under sections 234A, 234B, and 234C, asserting that the interest was incorrectly calculated and based on unsustainable additions. The Tribunal did not address this issue in detail, as the primary ground regarding the invalidity of the assessment order rendered this contention academic.

Conclusion:
The Tribunal allowed the appeal on the legal ground of non-issuance of notice under section 143(2) by the jurisdictional AO, rendering the assessment order null and void. Consequently, the issues raised on merits were deemed academic and were not adjudicated. The appellant's appeal was allowed, and the assessment order dated 30.12.2016 was annulled.