2008 (9) TMI 450 - AT - Income Tax

Non-service of notice within time as per Section 143(2)(ii) of Customs Act - Addition on account of suppressed sales. Service of notice - Whether s. 292BB is a curative provision and therefore cures the notices served before 1st April, 2008 of their infirmities - Rule against retrospectivity - notice u/s.143(2)(ii) was not served upon as per the time provision contained therein - validity of assessment order. HELD THAT - It is well established that the rule against retrospectivity has no application to enactments which affect only the procedure. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, and if an Act alters that mode of procedure, he can only proceed according to the altered mode. Alterations in the form of procedure are always retrospective. Sec. 292BB deals with service of notices which are matters of procedure and hence would always have retrospective (retroactive would be a more appropriate phrase) operation and therefore cure the procedural infirmities and irregularities in the matter of service of notice. This aspect of the matter is squarely covered by the judgment of the Hon'ble jurisdictional High Court in CWT vs. Kasturbhai Mayabhai 1985 (11) TMI 9 - GUJARAT HIGH COURT affirmed by the Hon'ble Supreme Court in CWT vs. Sharvan Kumar Swarup Sons 1994 (9) TMI 2 - SUPREME COURT . Since the Hon'ble jurisdictional High Court and Hon'ble Supreme Court have comprehensively dealt with this aspect of the matter, it is not necessary for us to deal further with the issue that procedural provisions are always applicable to pending matters. We therefore hold that the provisions of s. 292BB are procedural in nature and hence they would cure all the notices of their deficiencies regardless of the fact that they were served before 1st April, 2008. It was contended that s. 292BB was not on the statute book as on the first day of the relevant assessment year under appeal and hence cannot be applied to that year. We are unable to agree with the aforesaid submissions also. where an assessment was made by an authority lacking jurisdiction but if the relevant law is amended afterwards by inserting a retrospective or retroactive or validating or curative or declaratory provision with the object of conferring upon that authority proper jurisdiction, which it originally lacked, the appellate Court/Tribunal should, In our considered opinion, not only take that amendment into account but also hold that the authority had the jurisdiction when it made the assessment. We therefore hold that the provisions of s. 292BB will have to be invoked in all the pending proceedings including appellate proceedings after 31st March, 2008 otherwise the very purpose of disabling an assessee from taking any objection as to the service of notice would be defeated. Therefore, the irresistible conclusion is that s. 292BB cures the notices of their deficiencies after 31st March, 2008 and therefore an assessee cannot be permitted to raise any of the objections enumerated in the said section after 31st March, 2008 once it is shown that an assessee has appeared in any proceeding or cooperated in any inquiry related to an assessment. It shall now be deemed in terms of s. 292BB that the notice which was required to be served as per the time provision of s. 143 (2) has been duly served upon the assessee in time in accordance with the relevant provisions of the Act and therefore the assessee stands statutorily precluded from taking any objection at this stage that the notice was not served upon him, or was not served upon him in time, or was served upon him in an improper manner. All his submissions in this behalf are therefore rejected. Addition on account of suppressed sales - HELD THAT - AO had made addition towards suppressed profits and also rejected the books of account and accordingly worked out further addition on account of low GP. However he telescoped the addition on account of low GP against the larger addition and consequently did not make any addition separately for low GP. Thus the addition towards suppressed profits made by the AO included the other addition and it was for this reason that the AO had not made any separate addition for low GP. The ld CIT(A) ought to have considered this aspect of the matter while adjudicating upon and deleting the addition - Therefore, the order passed by the ld CIT(A) deleting the addition is set aside and the matter is restored to his file for a fresh decision. Now, the issue raised in the other appeal is also restored to his file for a fresh decision depending upon his order in the aforesaid appeal. Resultantly, the appeals filed by the Department are treated as allowed for statistical purposes.

Summary

Issues Involved:
1. Deletion of addition of Rs. 64,73,337 on account of suppressed sales.
2. Deletion of addition of Rs. 32,89,882 on account of low Gross Profit (GP).
3. Validity of the assessment order due to non-service of notice under Section 143(2)(ii) within the prescribed time limit.

Issue-wise Detailed Analysis:

1. Deletion of Addition of Rs. 64,73,337 on Account of Suppressed Sales:
The Department challenged the deletion of the addition of Rs. 64,73,337 made by the Assessing Officer (AO) under Section 143(3) on account of suppressed sales. The AO observed that the assessee received Rs. 33,70,000 from Shah Metal Industries and Rs. 31,03,337 from six other parties, which were not recorded in the sales account but were credited in the books. The assessee explained that these amounts were proceeds from sales made by C.P. Udyog, another firm with a common partner, and were transferred due to disputes making C.P. Udyog's bank account inoperative. The AO issued letters of inquiry under Section 133(6) for verification but found discrepancies and added the amount as suppressed sales. The CIT(A) deleted this addition, accepting the assessee's explanation without requiring further evidence.

2. Deletion of Addition of Rs. 32,89,882 on Account of Low Gross Profit (GP):
The AO noted the GP rate shown by the assessee was only 13%, which was considered low. The AO rejected the books of account due to non-maintenance of stock register and other discrepancies and applied a GP rate of 25%, resulting in an addition of Rs. 32,89,882. However, this was not added separately as it was telescoped against the larger addition of Rs. 64,73,337. The CIT(A) deleted this addition, stating that the AO had not stipulated any condition for retaining the GP addition if the suppressed sales addition was deleted.

3. Validity of the Assessment Order Due to Non-Service of Notice Under Section 143(2)(ii):
The assessee argued before the CIT(A) that the assessment order was invalid due to non-service of notice under Section 143(2)(ii) within the prescribed time limit. The return was filed on 31st Oct., 2002, and the notice under Section 143(2)(ii) was issued on 19th Jan., 2005, beyond the prescribed period. The CIT(A) upheld the validity of the assessment, noting that the assessee participated in the proceedings and submitted details. The Tribunal also considered Section 292BB, which deems notice to be valid if the assessee has participated in the proceedings, and held that the assessment was valid.

Decision on the Issues:
The Tribunal set aside the CIT(A)'s order deleting the addition of Rs. 64,73,337 and restored the matter for fresh decision, emphasizing the need for the assessee to provide cogent evidence that the sales were made by C.P. Udyog. The Tribunal also restored the issue of the addition of Rs. 32,89,882 to the CIT(A) for fresh adjudication, depending on the outcome of the first issue. The appeals filed by the Department were allowed for statistical purposes, and the Tribunal upheld the validity of the assessment order under Section 292BB, precluding the assessee from objecting to the service of notice.