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TMI Blog2014 (8) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Prarthana Jhalan For the Respondent : Shri N. A. Joshi ORDER Per Hari Om Maratha, J.M These three appeals by the assessee for A.Ys. 1994-95 to 1996-97, although filed against separate order of the ld. CIT(A), have been heard together and involve almost identical grounds. Therefore, we are proceeding to dispose them off by this common order for the sake of convenience, congruence and brevity. ITA NO. 136/JU /2014 [A.Y. 1994-95] 2. This is an appeal by the assessee for A.Y. 1994-95 directed against the order dated 23/12/2013 of ld. CIT(A), Jodhpur. 3. Briefly stated, the facts of the case are that the assessee is proprietor of M/s K.K. Bansal Co. Makrana. For A.Y. 1994-95, he filed his Return of Income [ROI] on 31.8.1994 declaring total income of ₹ 1,44,450/- within due time. Subsequently, a notice u/s 148 of the Income tax Act, 1961 ['the Act' for short] was issued on 14.3.2001 and the assessee complied with this notice by filing return of income declaring same income as was declared in the original return and this compliance was made o 23.4.2001. The Government of India, CBDT, launched a Voluntary Disclosure of Income Scheme [VDIS] on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed income and the tax liability in respect of such income will be finally settled on payment of the tax under the scheme, where the voluntarily disclosed income if represented by any cash, bullion, investment in shares of any other assets, wealth tax shall not be payable by the declarant in respect of such assets. iii) All particulars contained in a declaration will be treated as confidential and no court or authority will be entitled to require any public servant or the declarant to produce before it any such declaration or part thereof or to give any evidence in this regard. Tax on the disclosure was deposited late by one day. Consequently, declaration made by the assessee was not accepted by the CIT-II, Jodhpur and no requisite certificate was issued by him. After getting approval from the Additional CIT, Range-III, Jodhpur, notice u/s 148 of the Act was issued. Being aggrieved, the assessee approached the Hon'ble Jurisdictional High Court by filing writ petition in which the Hon'ble High Court stayed the assessment proceedings initiated against u/s 147/148 of the Act by passing an interim order dated 21.7.2001 on 27.12.2012. The High Court passed judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng notice u/s 143(2) of the Act which is a mandatory notice, no assessment proceedings can be completed. It is further argued that the provisions of section 292BB being prospective, would not rectify this defect and therefore, in the light of the various decisions and judgments cited before us, the assessment order has become null and void and is liable to be quashed. 7. On the other hand, the ld. D.R. has supported the action of the authorities below. He has argued that when the assessee did not raise this legal issue in the original appeal filed before the ld. CIT(A), the ld. CIT(A) has correctly not admitted this additional issue and has correctly dismissed the same. He has justified the additions made on merits of the case. 8. After considering the rival submissions, we have found that the legal issue raised in this appeal goes to the very root of the case. This legal issue was raised before the ld. CIT(A) as the additional ground of appeal. Any legal ground even if it was not raised before any authorities below, can be raised for the first time in case no further investigation of facts is required. In this regard, decision of the Hon'ble Supreme Court rendered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly clear that this is a mandatory notice. Without issuance thereof, no further proceedings can be pursued and completed by the A.O. The assessee has relied on various decisions in this regard which are as under: (i) Hon'ble Supreme Court in the case of Asstt. CIT v. Hotel Blue Moon [2010] 321 ITR 362, has held that the issue of notice under s. 143(2) within prescribed time is mandatory. ii) Hon'ble Allahabad High Court in CIT vs Rajeev Sharma (2011) 336 ITR 678 has been held that after receive of return in response to notice u/s 148, it is mandatory for the A.O. to serve a notice u/s 143(2) after received of fresh return, the entire procedure adopted for assessment shall be invalid for the non-issuance of notice u/s 143(2) iii) Decision of Punjab Haryana High Court in the case of CIT v. Cebon India Ltd. [2012] 347 ITR 583 in which it was held as under : CIT(A) as well as the Tribunal having recorded concurrent finding that the notice under s. 143(2) was not served on the assessee within the stipulated time, impugned assessment was not valid; absence of notice is not a curable defect under s. 292BB. iv) Decision of Gujarat High Court in the case of Dy. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Jain Vs. CIT [supra] apart from others mentioned above. 10. We have found that the A.O. has failed to issue requisite notice u/s 143(2) of the Act and this defect is not rectifiable u/s 292BB of the Act. Otherwise also, when two views are possible, the one favouring the assessee has to be taken and adopted in the light of the decision of the Hon'ble Supreme Court in the case of Vegetable Products Limited reported in 88 ITR 192 [SC] and similar view has been taken by this Bench in the case of Supriya Kanwar Vs. ITO ITA No. 362/JU/2010 dated 13.5.2014. 11. The plea that the concerned A.O. was not intimated about the vacation of the stay order and dismissal of the writ petition is of no avail because the Revenue was represented in court and otherwise also everybody is bound to be vigilant in such cases which are going on before the Hon'ble Jurisdictional High Court. As a result, we hold that the assessment order in this case is ab initio void. We quash the assessment order and allow the appeal of the assessee. 12. In the result, the appeal of the assessee is allowed. 13. In A.Ys 1995-96 and 1996-97, the facts, evidence and arguments of the parties are mutatis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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