2019 (3) TMI 571 - AT - Income Tax

Assessment u/s 153A - addition u/s 68 - non production of said shareholders - notice under section 143(2) have been issued on the date of filing of the return of income itself - HELD THAT - As decided in BHIKHUBHAI VITHLABHAI PATEL & ORS. VERSUS STATE OF GUJARAT & ANR. 2008 (3) TMI 660 - SUPREME COURT OF INDIA no hesitation in our mind in accepting the legal plea raised by Ld AR before us and thus holding that notice u/s 143(2) issued at same time and date of return filing u/s 148 ( vide order sheet entry dated 27/04/2016) vitiates the entire exercise and accordingly all subsequent proceedings are held to be invalid in eyes of law and therefore we quash the orders passed by AO and CIT(A) and allow additional ground raised by assessee. Even otherwise, on the merit of the case i.e. addition made u/s 68 that for mere reason of non production of directors in person of share holder companies same cannot be a justified ground to draw adverse inference u/s 68 of the Act where those share holders are found to be existing and identified in detail as summons have been duly served on them. Mere non production of share holder companies director is argued to be no valid reason for making addition u/s 68 of the Act dehors voluminous evidences filed which has not been objectively and lawfully controverted in manner known to law. For this Ld counsel for the assessee placed before us during the course of hearing a comprehensive chart of case laws from coordinate benches of ITAT where similar argument in identical circumstances of additions based on S.K.Jain group search has been deleted u/s 68 of the Act. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the assessment order under sections 153A/143(3) due to the issuance of notice under section 143(2) on the same day as the filing of the return.
2. Legality of the assessment framed without issuance of any show cause notice.
3. Non-application of mind by the Assessing Officer (A.O.) in issuing notice under section 143(2).

Issue-wise Detailed Analysis:

1. Validity of the assessment order under sections 153A/143(3) due to the issuance of notice under section 143(2) on the same day as the filing of the return:
The assessee contended that the assessment order is invalid and void ab initio as the notice under section 143(2) was issued on the same day the return was filed, indicating non-application of mind. The Tribunal admitted the additional ground of appeal, noting that the issue is legal in nature and goes to the root of the matter. It was established that the notice under section 143(2) was indeed issued on the same day as the return filing, which was confirmed by the assessment order and supported by the order sheet and notice copies. The Tribunal relied on the decision of the Hon’ble Supreme Court in NTPC 229 ITR 383 (SC) and the Hon’ble Gauhati High Court in Assam Company India Limited 256 ITR 423 (Gau.), which allowed considering new grounds if facts are available on record. The Tribunal found that issuing the notice on the same day as the return filing demonstrated a lack of application of mind by the A.O., thereby vitiating the entire assessment proceedings and rendering them invalid.

2. Legality of the assessment framed without issuance of any show cause notice:
The Tribunal noted that the A.O. and the Ld. CIT(A) did not mention whether the notices issued under section 142(1) and other related notices were served upon the assessee. The Tribunal rejected the contention of the Ld. D.R. that the assessee did not cooperate, as there was no evidence of non-compliance or non-cooperation by the assessee. The Tribunal emphasized that for the assessment to be valid, proper notices must be served, and the absence of such service invalidates the proceedings.

3. Non-application of mind by the Assessing Officer (A.O.) in issuing notice under section 143(2):
The Tribunal highlighted that the issuance of notice under section 143(2) on the same day as the return filing indicated a lack of application of mind by the A.O. This was further supported by the Tribunal's reliance on the decision in the case of Ashtech Industries Pvt. Ltd., Delhi vs. DCIT, Circle-3(2), New Delhi, where similar facts led to the quashing of the assessment order. The Tribunal reiterated that the A.O. must apply his mind independently before issuing such notices, and failure to do so invalidates the assessment proceedings.

Conclusion:
The Tribunal quashed the assessment order, deeming it invalid due to the simultaneous issuance of the notice under section 143(2) on the same day as the return filing, which indicated non-application of mind. The Tribunal also noted the lack of proper service of notices and the absence of a show cause notice, further invalidating the assessment proceedings. Consequently, all additions made in the assessment were deleted, and the appeal of the assessee was allowed.