2019 (9) TMI 499 - AT - Income Tax

Validity of Assessment - Proceedings initiated after search - instead of issuing notice u/s 153C, notice was issued u/s 147/148 - Assessment order passed u/s 143(3) - no notice under section 143(2) of the Act has been issued to assessee - alternate for completing the assessment under section 144 - HELD THAT - Once no notice under section 143(2) of the Act has been issued, then no assessment can be completed under section 143(3) of the Act. Clause (a) to section 144(1) of the Act talks of failure to file any return of income under section 139(1) of the Act or under sub-sections (4) or (5) of the said section. Clause (b) talks of failure to comply with all terms of notice issued under sub-section 142(1) of the Act and clause (c) talks of failure to comply with the terms of notice issued under section 143(2) of the Act. In such scenario, the Assessing Officer is empowered to pass an order to the best of his judgment to determine the total income or loss of assessee for the relevant assessment year. In the facts of present case, where the assessee had failed to file any return of income under any of the provisions of section 139 and had failed even in terms of notice issued under section 142(1) of the Act, then the provisions of section 144 are attracted and the AO has the power to pass an order to the best of his judgment. The third condition of having filed return of income and not complying with notice issued under section 143(2) do not apply to the present facts. In such scenario, we hold that the order passed under section 143(3) r.w.s. 147 of the Act suffers from infirmity and the Act itself provides an alternate for completing the assessment under section 144 Whether the defect in applying the said section is curable under section 292B of the Act or not? - Section 292B of the Act cannot be pressed into action to cure the defect in the assessment made in the present case. Accordingly, we hold that assessment order passed in the present case is both invalid and bad in law. Thus, the additional ground of appeal raised by assessee is allowed.

Issues Involved:
1. Validity of notice issued under Section 147 instead of Section 153C.
2. Reopening of reassessment proceedings under Section 147.
3. Passing of order under Section 143(3) r.w.s. 147 without disposing of objections.
4. Treatment of ?33,42,078/- as undisclosed receipt.
5. Addition of ?33,42,078/- leading to double taxation.
6. Lack of proper opportunity of hearing and cross-examination.
7. Non-allowance of indexation on cost of assets.
8. Enhancement of income by ?1,80,63,073/- by CIT(A).
9. Enhancement on a new source of income beyond CIT(A)'s powers.
10. Direction to initiate prosecution proceedings.
11. Direction to initiate penalty proceedings under Section 271(1)(c).

Issue-wise Detailed Analysis:

1. Validity of Notice Issued under Section 147 Instead of Section 153C:
The assessee argued that the notice should have been issued under Section 153C due to the search action under Section 132 on another individual. The tribunal did not explicitly address this issue in the final judgment, focusing instead on the procedural validity of the assessment.

2. Reopening of Reassessment Proceedings under Section 147:
The assessee contended that the reopening was based on incorrect facts regarding the sale of jewelry, which had already been declared in the income tax return. The tribunal admitted the additional ground of appeal challenging the validity of the assessment under Section 143(3) r.w.s. 147 due to the absence of a notice under Section 143(2).

3. Passing of Order under Section 143(3) r.w.s. 147 Without Disposing of Objections:
The assessee claimed that the order was passed without addressing their objections, violating the Supreme Court's direction in GKN Driveshaft (India) Ltd. vs. ITO. The tribunal focused on the procedural lapse of not issuing a notice under Section 143(2).

4. Treatment of ?33,42,078/- as Undisclosed Receipt:
The assessee argued against the treatment of ?33,42,078/- as undisclosed receipt, stating it was already declared. The tribunal did not delve into this issue due to the procedural invalidity of the assessment.

5. Addition of ?33,42,078/- Leading to Double Taxation:
The assessee claimed that the addition led to double taxation as the capital gain was already offered for taxation. The tribunal did not address this due to the procedural invalidity of the assessment.

6. Lack of Proper Opportunity of Hearing and Cross-examination:
The assessee argued that the CIT(A) passed the order without giving a proper hearing or allowing cross-examination of witnesses. The tribunal did not address this due to the procedural invalidity of the assessment.

7. Non-allowance of Indexation on Cost of Assets:
The assessee sought relief for indexation on the cost of assets, which was not claimed inadvertently. The tribunal did not address this due to the procedural invalidity of the assessment.

8. Enhancement of Income by ?1,80,63,073/- by CIT(A):
The assessee contended that the enhancement of income was beyond the time limit and powers of CIT(A). The tribunal did not address this due to the procedural invalidity of the assessment.

9. Enhancement on a New Source of Income Beyond CIT(A)'s Powers:
The assessee argued that the CIT(A) exceeded his powers by enhancing income from a new source. The tribunal did not address this due to the procedural invalidity of the assessment.

10. Direction to Initiate Prosecution Proceedings:
The assessee requested the cancellation of the direction to initiate prosecution proceedings. The tribunal did not address this due to the procedural invalidity of the assessment.

11. Direction to Initiate Penalty Proceedings under Section 271(1)(c):
The assessee requested the cancellation of the direction to initiate penalty proceedings on the enhanced income. The tribunal did not address this due to the procedural invalidity of the assessment.

Procedural Invalidity of Assessment:
The tribunal focused on the procedural aspect, particularly the absence of a notice under Section 143(2) after the issuance of a notice under Section 148. The tribunal held that the assessment under Section 143(3) r.w.s. 147 was invalid due to this procedural lapse. The tribunal referenced the Mumbai Bench decision in S. Kumar Enterprises (Synfabs) Ltd. vs. JCIT, emphasizing that the issuance of a notice under Section 143(2) is a mandatory requirement. The tribunal concluded that the defect could not be cured under Section 292B, rendering the assessment order invalid and bad in law.

Conclusion:
The tribunal allowed the appeal, declaring the assessment order invalid and bad in law due to the procedural lapse of not issuing a notice under Section 143(2). Consequently, the tribunal did not adjudicate the other grounds of appeal.

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