2020 (1) TMI 1046 - AT - Income Tax

Validity of the reassessment proceedings u/s 147 - non-issuance of notice u/s 143(2) - HELD THAT - Hon'ble Delhi High Court in the case of PCIT vs. Jai Shiv Shankar Traders Pvt. Ltd. 2015 (10) TMI 1765 - DELHI HIGH COURT has held that failure of the Assessing Officer to issue notice u/s 143(2) in reassessment proceedings, prior to finalizing reassessment order cannot be condoned by referring to section 292BB and is fatal to the order of reassessment. Various other decisions relied on by the assessee in the case law compilation also support his case that in absence of issue of notice u/s 143(2) even in reassessment proceedings, the order becomes invalid and has to be quashed. Since, in the instant case, the assessee filed the letter stating that the return filed originally may be treated as return filed in response to notice u/s 148 and since the notice u/s 143(2) was not issued within the statutory period and since the assessment was not completed u/s 144 nor any interest u/s 234A has been charged which indirectly proves that the assessee, in fact, has filed the letter stating that the return filed originally may be treated as return filed in response to notice u/s 148, therefore, we hold that the assessment order passed by the Assessing Officer is not in accordance with law and has to be quashed. The legal ground raised by the assessee challenging the validity of the assessment order is accordingly allowed. Decided in favour of assessee.

Issues Involved:
1. Validity of reassessment proceedings under Section 147.
2. Non-issuance of notice under Section 143(2) within the statutory period.
3. Additions made on account of business procurement expenses.
4. Additions made on account of unaccounted scrap sales.
5. Additions made on account of excess interest payment.
6. Charging of interest under Sections 234B and 234C.

Detailed Analysis:

1. Validity of Reassessment Proceedings under Section 147:
The assessee challenged the reassessment proceedings initiated by the Assessing Officer (AO) on the grounds that the notice under Section 143(2) was not issued within the time allowed. The CIT(A) upheld the validity of the reassessment proceedings, stating that the AO followed the procedure laid down by the Supreme Court in GKN Driveshafts India Ltd. vs. ITO, and the appellant did not raise any objection during the reassessment proceedings regarding the service of notice under Section 143(2).

2. Non-issuance of Notice under Section 143(2) within the Statutory Period:
The assessee argued that no notice under Section 143(2) was issued within the statutory period after filing the return in response to the notice under Section 148. The Tribunal found merit in the assessee's argument, noting that the AO did not pass the order under Section 144 nor levy interest under Section 234A, indicating that the assessee had indeed filed a reply in response to the notice under Section 148. The Tribunal held that the absence of a notice under Section 143(2) within the stipulated time rendered the assessment invalid, citing the decision in the assessee's own case for the immediately preceding assessment year and other relevant case laws.

3. Additions on Account of Business Procurement Expenses:
The AO made an addition of ?1,85,28,300/- on account of business procurement expenses based on incriminating documents found during a survey. The CIT(A) upheld this addition, stating that the assessee failed to offer any explanation regarding the entries in the incriminating documents.

4. Additions on Account of Unaccounted Scrap Sales:
The AO added ?13,85,556/- for unaccounted scrap sales based on the survey findings. The CIT(A) confirmed this addition, noting that the assessee did not provide any concrete evidence to counter the findings.

5. Additions on Account of Excess Interest Payment:
The AO made an addition of ?6,77,918/- for excess interest payments. The CIT(A) upheld this addition, stating that the assessee could not justify the interest payments recorded in the books of account.

6. Charging of Interest under Sections 234B and 234C:
The assessee also challenged the charging of interest under Sections 234B and 234C. However, since the Tribunal quashed the assessment order on the ground of non-issuance of notice under Section 143(2), this issue became academic and was not adjudicated.

Conclusion:
The Tribunal allowed the appeal filed by the assessee, quashing the assessment order due to the non-issuance of notice under Section 143(2) within the statutory period. Consequently, the other grounds raised by the assessee were deemed academic and were not adjudicated.

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