2021 (2) TMI 1017 - AT - Income Tax

Validity of re-assessment notice u/s. 148 - Notice issued beyond 4 years - ex-parte orders - HELD THAT - From the appeal papers and the orders of the authorities below i.e., CIT(A)'s order and AO's order, it is noticed that practically both the orders are ex-parte. From the order of the CIT(A), it is noticed that the CIT(A) has not adjudicated the issue of re-opening, whether notice u/s. 148 can be issued beyond 4 years in the given facts and circumstances of the case. Secondly, the CIT(A) has not at all touched the issue of best judgment completed ex-parte, which is raised by the assessee. Even on merits we noted from the order of CIT(A), that CIT(A) has not given any finding on merits except accepting the version of the AO. CIT(A) has not adjudicated both the issues on jurisdiction i.e., best judgment made ex-parte as well as notice issued u/s. 148 of the Act beyond 4 years, which is beyond jurisdiction, according to the assessee. Since, these issues were not adjudicated, we are of the view that let the CIT(A) re-examine the issues in entirety, but it is also noticed that even the order of the AO is an ex-parte u/s. 144 r.w.s. 147 - Hence, purpose will not be served in case matter is restored back to CIT(A), because AO has to gather all the evidences and he has to adjudicate these issues. Hence in entirety, the assessment is set aside and appellate order is also set aside, matter remanded back to the file of the AO, to re-do the assessment afresh. The assessee is at liberty to raise jurisdictional issues as well as issues on merits before the AO. Appeal of the assessee is allowed for statistical purpose.

Summary

Issues:
1. Validity of re-assessment notice u/s. 148 issued beyond 4 years
2. Best judgment completed ex-parte by the AO

Issue 1: Validity of re-assessment notice u/s. 148 issued beyond 4 years

The appeal raised concerns regarding the validity of the re-assessment notice issued under section 148 of the Income Tax Act beyond the stipulated four-year period. The assessee contended that no notice of reassessment under section 148 was served, and the reopening was beyond the statutory limitation period. The CIT(A) was criticized for rejecting the plea that the reopening was unlawful due to the absence of a notice or reasons recorded for the assessment year in question. It was argued that the reassessment, initiated after four years, was time-barred. Additionally, it was highlighted that the assessment order did not allege any failure on the part of the assessee to disclose all material facts necessary for assessment as required by the proviso to section 147.

Issue 2: Best judgment completed ex-parte by the AO

The second issue raised by the assessee pertained to the best judgment assessment completed ex-parte by the Assessing Officer (AO), alleging a violation of the principles of natural justice. The contention was that the AO had not provided an opportunity for a hearing, and no notice of reopening was issued, leading to a breach of natural justice principles. The assessment order being completed ex-parte was highlighted as a significant concern, emphasizing that no hearing or notice was granted to the assessee. Furthermore, it was argued that the absence of a notice under section 143(2) within the prescribed timeframe could render the assessment invalid, as per the provisions of section 292BB.

Upon examination of the case records and orders of the authorities, it was observed that both the CIT(A) and the AO had essentially passed ex-parte orders without addressing the core issues raised by the assessee. The CIT(A) did not provide any findings on the merits of the case, merely accepting the AO's version. The AO, on the other hand, did not delve into the merits but assessed the income ex-parte under section 144 of the Act. In light of these deficiencies, the matter was deemed fit for restoration to the CIT(A) for a fresh adjudication of all issues. However, considering the ex-parte nature of the AO's order and the need for comprehensive assessment, the Tribunal set aside both the assessment and appellate orders, remanding the case back to the AO for a fresh assessment. The assessee was granted the liberty to raise jurisdictional and merit-related issues before the AO. Consequently, the appeal of the assessee was allowed for statistical purposes.

This detailed analysis of the judgment provides a comprehensive overview of the issues involved, the arguments presented by the assessee, and the Tribunal's decision to remand the case back to the AO for a fresh assessment.