2019 (9) TMI 467 - AT - Income Tax

Reopening of assessment u/s 147 - Revision u/s 263 - no notice u/s 143(2) was issued - HELD THAT - Where the assessment order forming the basis of proceedings under section 263 are themselves invalid, the order passed u/s 263 cannot survive and it is also a nullity. No decision to the contrary has been cited. Since the assessment order in the present case was void ab initio for want of issuance of notice under section 143(2) the return filed by the assessee having been accepted, the revisional order passed on the said assessment order is also a nullity. We hold accordingly and the impugned order passed under section 263 of the Act is set aside and cancelled. As such, nothing further survives for adjudication.

Summary

Issues:
1. Delay in filing of appeal condonation.
2. Jurisdiction of the Commissioner under section 263 of the Income Tax Act.
3. Assessment order validity under sections 143(3) and 148.
4. Validity of proceedings under section 263 based on the assessment order.

Analysis:

Issue 1: Delay in filing of appeal condonation
The appeal was filed with a delay of 19 days, which was condoned by the Appellate Tribunal based on sufficient cause shown in the application supported by an affidavit. The Tribunal admitted the appeal for hearing after condoning the delay.

Issue 2: Jurisdiction of the Commissioner under section 263 of the Income Tax Act
The assessee challenged the jurisdiction of the Commissioner under section 263, arguing that the order was bad in law due to lack of proper opportunity of hearing and that the assessment order under section 143(3) was not erroneous. The Commissioner found discrepancies in the assessment, including interest deductions, unsecured loans, and non-deduction of TDS, leading to the order being set aside as prejudicial to the revenue's interests.

Issue 3: Assessment order validity under sections 143(3) and 148
The assessment order under sections 143(3) and 153A was challenged on the grounds of no notice under section 143(2) being issued, making the assessment void. The Tribunal examined the assessment order and found that the notice dated 17/11/2014 was issued under section 148, not 143(2), due to the expiry of the time limit for issuing the latter notice. Citing precedents, the Tribunal held that a void assessment order renders subsequent revisional orders invalid.

Issue 4: Validity of proceedings under section 263 based on the assessment order
Based on the invalidity of the assessment order due to the lack of a notice under section 143(2), the Tribunal concluded that the revisional order under section 263 was also null and void. Relying on previous cases, the Tribunal held that if the assessment order forming the basis of section 263 proceedings is invalid, the revisional order cannot stand. Consequently, the impugned order under section 263 was set aside and cancelled, leading to the allowance of the assessee's appeal.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned order under section 263 due to the invalidity of the assessment order, and nothing further remained for adjudication.