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TMI Blog2017 (7) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings and, thus, the impugned reassessment, agitated per the following grounds: JURISDICTION 1.1 The Commissioner of Income-tax (Appeals) erred in not accepting the plea of the Appellant that no notice u/s 148 of the Income Tax Act having been served on him till date, the entire re-assessment is vitiated. 1.2 The Commissioner of Income-tax (Appeals) has failed to note that in the instant case Sec. 292BB is inapplicable and therefore the CIT (Appeals) ought to have quashed the re-assessment. 1.3 The Commissioner of Income Tax (appeals) erred in not following the decisions cited before her and in particular that of the Delhi High Court in CIT vs. Chetan Gupta (382 ITR 613) wherein it had been categorically held that Section 292BB is only prospective in nature. 1.4 The Commissioner of Income Tax (Appeals) failed to consider the detailed rejoinder/submissions of the Appellant regarding the report of the Assessing Officer dated 12.02.2016 in this regard.' The brief facts are that the assessee sold a property at Ashok Nagar, Chennai during the relevant year (on 19.10.2004) for . 66.40 lacs, information on which was received by the Revenue through the Annual Informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner : Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.' (emphasis, supplied) The law, per the said amendment, deems that the assessee having participated in the proceedings has been served the notice in time and in accordance with law. The caveat is that objection/s, if any, qua any of the aspects of service is to be raised before the completion of the assessment, i.e., by 28.02.2013 in the instant case. No objection has admittedly been raised by the assessee during the assessment proceedings in the present case. The assessee's objection i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for a particular year (i.e., the previous year ending 31/3/2008 or fy 2007-08) and subsequent years. The provision was not attracted in the facts of that case in-asmuch as the assessee had admittedly raised an objection during the course of the assessment proceedings that he had not been served notice u/s. 148. There is in fact no discussion on the scope of the applicability of the provision in the Judgment, and all that the Hon'ble Court states is that the provision is introduced w.e.f. 01.04.2008 and is prospective (refer para 45). There is, as aforesaid, no doubt or controversy on that; the curb on the assessee's right to object service, thus causing prejudice thereto, becomes applicable only from 01.04.2008. That, however, does not in any manner imply or lead to the inference of the provision being applicable with reference to a particular year of assessment or to the assessment for a particular year. This is as the provision has per se nothing to do so with the year for which the assessment is being framed or to which the proceedings relate. Why, the assessment for AY 2008-09, the first assessment year for which the provision is said to be applicable, would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering this fresh objection by the assessee, it would be relevant to advert to the leading decisions qua the import of a notice in proceedings under the Act. As explained in Estate of Late Rangalal Jajodia v. CIT [1971] 79 ITR 505 (SC) (at pg.511), lack of notice does not amount to the revenue authority having had no jurisdiction to assess, but that the assessment was defective by the reason of the notice not having been given, further observing that the assessment proceedings do not cease to be proceedings under the Act merely by the reason of want of notice. And that it shall though be a proceeding liable to be challenged and corrected. In other words, the proceedings become irregular for want of notice and, therefore, as explained in Guduthur Bros. v. ITO [1960] 40 ITR 298 (SC), shall have to go back to the stage where the irregularity sets in. In fact, referring to it's afore-noted observations in Estate of Late Rangalal Jajodia (supra) (at pg. 746), also noting the facts of that case (at pgs. 746-747), the Hon'ble Apex Court in CIT v. Jai Prakash Singh [1996] 219 ITR 737 (SC), rejected a similar plea of the assessment made without notice to the other legal representative ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g corrected, as clarified in Estate of Late Rangalal Jajodia (supra), by, following the law in the matter, restoring the matter back to the stage where the irregularity sets in. This further explains the decision in Chetan Gupta (supra) being of no assistance to the assessee. In fact, as duly noted by the Hon'ble Court therein, the law, per s. 153(2), spells out the consequence of non service of notice u/s. 148. This is as the time limit for the completion of assessment u/s. 147 is set at a defined time period (one year) from the date of its service. As such, assuming non service of notice u/s. 148(1), it shall not operate to render the assessment u/s. 147 as an impossibility, as would be the case where the same becomes barred by time, so that even its restoration for removal of the irregularity, i.e., to which it is subject, becomes a futile exercise. That is, the only remedy in case of non service of notice u/s. 148(1), or where an objection/s in respect of its service has been raised before the completion of assessment u/s. 147, and which is found valid by an appellate forum, is to restore the matter for proper service of notice as per law. Rather, such a situation may not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons recorded by the AO that it is a fit for reopening, and which also bears several dates, including the date of approval; of issue of notice u/s. 148 (stated as 31.03.2012); and of its service (stated as 02.04.2012) (a system generated report). c). A system generated report on assessment, which carries several fields including the status of the assessment (noted as completed). The same carries the following note in the comments column 'The notice u/s. 148 was issued on 31.03.2012. The due date of the filing of return is 02.05.2012.' The same also bears the date of the passing of the order, i.e., 28/2/2013. d). Notice u/s. 148(1) dated 31.03.2012, which bears the endorsement 'RPAD', which was emphasized by the ld. DR during hearing, as being in the same hand as the signature signing the notice, i.e., of the officer issuing the notice (i.e., R.Ravi Chandran, ITO, Business Range-II (3), Chennai), and which clearly appears to be the case. e). Order sheet entry, again in the hand of the AO, as to the notice u/s. 148 being issued after obtaining administrative approval. The same is dated 31.03.2012. I have no reason to doubt the authenticity and the validity of the aforereferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id and, therefore, was not correct in quashing the assessment order on the said ground, by the Revenue was answered in positive, i.e., in favour of the Revenue. In other words, the said decision, besides being squarely applicable in the facts and circumstances of the case, decides the legal question arising in the instant case. In fact, even otherwise, where two decisions by non jurisdictional High Courts decide a legal issue differently, none being binding on the tribunal, it is upon the tribunal to take a decision which appeals to it's judicial conscience. Why, every decision by a non jurisdictional High Court has a persuasive value, though is not a binding precedent, which would make it at par with the jurisdictional High Court, is again well settled (refer: Suresh Desai & Ass. v. CIT [1998] 230 ITR 912 (Del); Geoffery Manners & Co. Ltd. v. CIT [1996] 221 ITR 695 (Bom); CIT v. Thane Electricity Supply Ltd. [1994] 206 ITR 797 (Bom); Patil Vijayakumar & Ors. v. Union of India [1985] 151 ITR 48 (Kar)). It may therefore not necessarily be followed even if it is the solitary decision. That the tribunal should nevertheless have strong reasons for taking a different view, or adopting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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