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TMI Blog2015 (3) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... on has not been raised by the assessee, before the A.O. or the Ld.CIT(A), we hold that this is a legal issue and as all the facts are on record, this contention can be raised before us, by the assessee for the first time, as this is a jurisdictional issue. Thus we dismiss this contention of the Ld.D.R. as devoid on merit. - Decided in favour of assessee. - ITA Nos.5821-5822-5823-5824-5825 And 5826/Del/2014 - - - Dated:- 9-1-2015 - J. Sudhakar Reddy, AM And A. T. Varkey, JM,JJ. For the Appellant : Shri Ajay Wadhwa, Adv. For the Respondent : Shri R S Gill, CIT, DR ORDER Per J. Sudhakar Reddy,AM. All these appeals are filed by the assessee and are directed against a separate order dt. 26.9.2014 passed for AY 2006-07 and a common order for the AY 2007-08, 2008-09, 2009-10 and 2010-11 dt. 26.9.2014 and a separate order for the AY 2011-12 which is also dt. 26.9.2014. As the issues arising in all these appeals are common, for the sake of convenience they are heard together and are disposed of by way of this common order. 2. Facts in brief: - The brief narration of functions of the assessee are as under. 1. (i) The Greater Noida Industrial Development Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reasons given in his order partly confirmed the order of the AO. 2.4. Further aggrieved the assessee is in appeal before us on the following grounds. 1. That the Ld. CIT (A) without appreciating the merit of the submission with respect to Ground no. 1 dismissed the same holding it to be vague and general in nature. 2. That the Ld. CIT (A) without appreciating the merit of written submissions with respect to Ground No. 2, 4, 5 6 has simply reproduced the same in his order and has dismissed the same in view of the judgment of Honorable Allahabad High Court. 3. That the Ld. CIT (A) without appreciating the merit of the submission with respect to Ground no. 3 rejected the same and confirmed the action of the A.O. 4. That the Ld. CIT (A) without appreciating the merit of the submission with respect to Ground no. 8, has erred in confirming the addition made by Ld. A.O. by disallowing revenue expenditure for repair and maintenance of building by treating it as capital expenditure. 5. That the order of the Ld. A.O. is void ab intio in as much as, no mandatory notice u/s 143(2) of the Income Tax Act, 1961 was issued at any stage of the assessment proceedings. 6. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory procedure prescribed under section 147 to 151 of the Income Tax Act, 1961, as such the assessment may please be held as bad in law and may kindly be set aside. (iv) That having regard to the facts and circumstances of the case, the Ld. AO has erred in interpreting the provisions of the section 10(20) of the Income Tax Act, 1961, relied upon the Allahabad High Court Judgement in the case of New Okhla Industrial Development Authority (NOIDA) without taking the cognizance of the fact that NOIDA has filed a SLP with Honorable Supreme Court and Honorable Supreme Court has granted the leave on the question of law vide its order dated 17.01.2014; (v) That the Ld. AO has failed to appreciate the functions performed and discharged by the Assessee and in treating the status of the assessee as Artificial Juridical Person instead of Local Authority; (vi) That having regard to the facts and circumstances of the case, the Ld. AO has ignored the provisions of Article 289 of the Constitution of India; (vii) That the Ld. AO has erred in making an addition of ₹ 5,50,79,979/- under section 40(a)(ia) of the Income Tax Act, 1961 without according an adequate opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had, at the stage of assessment proceedings, failed to issue the mandatory notices u/s 143(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). Consequently he submitted that, the AO cannot be said to have assumed jurisdiction to make the assessment and hence the order passed by him is invalid and void ab initio. 3.2. To demonstrate that the AO had not issued the mandatory notice u/s 143(2) of the Act, the Ld.Counsel for the assessee referred to and submitted as follows. 5.1 The Appellant received a notice under section 148 of Income Tax Act, 1961 dated 26th day of March 2013 from Income Tax Department with respect to the Assessment Year 2006-07 (hereinafter referred to as 'the Said Notice'). The Said Notice was served upon the Appellant on the 28th day of March 2013 requiring the Appellant to file its Income Tax Return for the Assessment Year 2006-07 (hereinafter referred to as the said Assessment Year'); (copy of notice is enclosed ref pg 434-438 of Paper book). 5.2 The Appellant filed the Income Tax Return in response to the notice on the 12th day of April 2013 along with financial statements comprising of Balance Sheet and Income Expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply to Point No. 15 (v) Reply to Point No. 20 (vi)Reply to Point No. 4 (vii) Reply to Point No. 9 5.9 The next date of hearing was fixed for 03rd day of Feb 2014; The Appellant on the hearing on 03rd day of Feb 2014 submitted the following details to the Ld. AO- i. Reply to Point No. 6 ii. Reply to Point No. 21 The next date of hearing was fixed for o6th day of Feb 2014; 5.10 The Appellant in addition to the above details submitted copies of all TDS returns filed during the Financial Year related to Assessment Year 2006-07 along with copies of challans and related details thereto on dated 14th Feb,2014. 5.11 The Ld. AO passed an assessment order under section 143(3)/147 of the Income Tax Act 1961 on the 19th day of Feb 2014 (hereinafter referred to as 'the said Assessment Order'); the said Assessment Order was received by the Appellant on 24th day of Feb 2014. The order passed by the Ld. AO is premeditated and predetermined as it was finalized by the Income Tax Authorities beforehand and is dated the same date i.e. 19th day of Feb 2014, which was the date of the last hearing; 3.3. He also enclosed a chart showing notices issued by the AO, Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r relief. 4. Ld.CIT, D.R. Shri RS Gill vehemently opposed the contentions of the assessee. He submitted that this ground of non-issuance of notice u/s 143(2) by the A.O. was not raised either before the AO or before the Ld.CIT(A). He submitted that the Ld.CIT(A) had no occasion to consider this contention of the assessee. He further submitted that the assessment record has to be gone into, to come to a firm conclusion that no notice u/s 143(2) has been served on the assessee. While agreeing that the Bench has specifically directed the Revenue to produce all the assessment records during the course of final hearing, for verifying this contention of the assessee he submitted that the assessment records can be produced before the Bench. The Bench directed the Ld.D.R. to produce all the assessment records before the Bench within one week from the date of hearing, to which he agreed. 5. Rival contentions heard. 6. On a careful consideration of the facts and circumstances of the case, on perusal of orders of lower authorities, material on record and case laws cited, we hold as follows. 7. The AO had at para 1 of his order recorded the following finding. In this case, proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be pres-cribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 : Section 292BB of the Act, Notice deemed to be valid in certain circumstances. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- 2(a) not served upon him; or (b) not served upon him in time; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Travel Bus Service (2012) 17 taxmann.com 140 (All.) at paras 5 to 9 has held as follows. 5. By considering the rival submissions and on perusal of record, it appears that Section 143(2) of the Act is in two parts. The first part deals with jurisdiction and second with the procedure. The proviso to section 143(2) of the Act puts an embargo on the assessing officer to exercise jurisdiction after the expiry of 12 months from the end of the month in which the return was filed by the assessee. It is the discretion of the assessing officer to accept the return as it is or to proceed further with the assessment of income, once the assessing officer decides to proceed, he has to issue notice under section 143(2) within the prescribed time-limit to make the assessee aware that his return has been selected for scrutiny assessment. 6. It may be mentioned that the Hon'ble Supreme Court in the case of Asstt: CIT v. Hotel Blue Moon [2010] 188 Taxman 113 observed that the notice under section 143(2) within the time prescribed, is mandatory. Similar views were expressed by this Court in IT Appeal No. 134 of 2005 (CIT v. Bora Polyclinic (P.) Ltd.) decided on 05.07.2010 as well as in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the proposition as to whether the provisions of S.292BB would come to the rescue of the Revenue, we find that the Jurisdictional High Court in the case of CIT-2, Lucknow vs. Salarpur Cold Storage (P) Ltd. (supra) had at para 13 held as follows. 13. In our view, where the Assessing Officer fails to issue a notice within the period of six months as spelt out in the proviso to clause (ii) of Section 143 (2) of the Act, the assumption of jurisdiction under Section 143(3) of the Act would be invalid. This defect in regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction under Section 292 BB of the Act. The fiction in Section 292 BB of the Act overcomes a procedural defect in regard to the non-service of a notice on the assessee, and obviates a challenge that the notice was either not served or that it was not served in time or that it was served in an improper manner, where the assessee has appeared in a proceeding or cooperated in an enquiry without raising an objection. Section 292 BB of the Act cannot come to the aid of the revenue in a situation where the issuance of a notice itself was not within the prescribed period, in which e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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