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TMI Blog2020 (11) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Assessing Officer was Income Tax Officer and not DCIT or ACIT who had issued noticed u/s 143(2) of the Act. It is also an admitted fact that jurisdictional Assessing Officer which is Income Tax Officer, Ward-6, Kanpur had not issued any notice u/s 143(2). In the present case we have already held that statutory notice u/s 143(2) was not issued by the jurisdictional Assessing Officer and therefore, the reliance placed by Learned D. R. on 292BB is of no help to Revenue. Keeping in view the above facts and circumstances and legal precedents, we allow the jurisdictional ground taken by the assessee that the notice u/s 143(2) was not issued by an officer having jurisdiction on the assessee and who had passed the assessment order and therefore, we hold that in view of non issue of statutory notice u/s 143(2), the assessment order is bad in law and void ab in initio and hence all further proceedings including the order passed by the learned CIT(A) is bad in law and therefore, the appeal filed by Revenue against the order of learned CIT(A) does not stand and is dismissed. - Decided in favour of assessee. - ITA No.553/Lkw/2018 - - - Dated:- 6-11-2020 - Shri A. D. Jain, Vice Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the assessee submitted that this aspect has been examined in various decisions of various authorities cited by him and stated that even the Hon'ble Lucknow Bench of the Tribunal in the case of AAA Paper Marketing Ltd. has considered this aspect and has passed a detailed order in this respect. It was submitted that Hon'ble Tribunal has taken note of such arguments of the Revenue and after relying on the case law of DCIT vs. Jubiliant Enpro Pvt. Ltd. decided by Delhi D Bench, has decided this issue in favour of the assessee. 5. We have heard the rival parties and have gone through the material placed on record. We find that the assessee has invoked the provisions of Rule 27 of the I.T.A.T. Rules to challenge the order of CIT(A) on the following grounds: (i) That the Department has initiated the assessment for limited scrutiny which has been converted into fill scrutiny without taking the approval of concerned Pr. CIT, which was mandatory in view of CBDT Instruction No.20/2015 and 5/2016. (ii) The other ground taken in the application is that notice u/s 143(2) dated 03/09/2015 is issued by DCIT, Circle-6, Kanpur and later on assessment is framed by Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer under section 153A, ignoring that the Additional Commissioner has granted the approval in a mechanical manner, the CIT(A) has further erred in not appreciating that no proceedings were pending on the date of search and the entire assessment has been framed without any reference to incriminating material found as a result of search. 3. The Ld. counsel further submitted that under Rule 27 of the ITAT Rules, a legal plea, which was not raised by the assessee before the lower authorities, can be raised at any stage by the assessee before the Tribunal as per proposition laid down by various decision and orders including order of the ITAT 'ID' Bench Delhi dated 19.05.2014 in the case of DCIT Vs. Jubiliant Enpro Pvt. Ltd. in ITA No. 560/Del/2010 Assessment Year 1998-99. 4. In reply to the above, Ld. DR strongly opposed to admission of the above noted ground and submitted that the legal plea which was not raised before the Assessing Officer and CIT(A) cannot raised before the Tribunal at the appellate stage under any provision including Rule 27 of ITAT Rules. 5. On careful consideration of rival submission, we are of the view that in the similar situation ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the CIT(A), he shall still be entitled under Rule 27 of the ITAT Rules, 1963, to support the conclusion of the order of the first appellate authority, being the deletion of addition, by challenging the finding of the. CIT(A) which was delivered against him on the legal issue of reopening of assessment. 14.4. The mandate of Rule 27 is to be seen in contradistinction to the provisions of section 253(4) of the Act, which empower the respondent, on an appeal filed by the plaintiff, to file cross objection against any part of the order. At this stage, it may be fruitful to take note of the prescription of sec. 253(4), which provides that: The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) or the Assessing Officer in pursuance of the directions of the Dispute Resolution Panel has been preferred under subsection (1) or sub-section (2) or sub-section (2A) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof, within thirty days of the receipt of the notice, file a memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the issue, which was not taken up before the first appellate authority or taken up but remained undecided, and the appeal of the plaintiff is allowed, the respondent would be rendered without remedy. It has been noticed above that a respondent is not entitled to file cross objection on such aspects of the issue u/s 253(4) of the Act, the scope of which provision is circumscribed to challenging the ultimate unfavorable conclusion drawn by the CIT(A). In common parlance, when an issue is decided in favor of one party whether on one aspect or the other, it is not expected of such a party to challenge the order by asserting that the decision should have been given in his favor on that issue on all the aspects and not on that particular aspect on which it was given. When an appeal is filed against such favorable decision on the issue by the other party, and suppose the impugned order is not sustainable on that aspect of the issue on which it was decided, but on some other aspect which was not decided by the first appellate authority and the respondent is restrained from taking up such aspect on the reasoning that Rule 27 is not applicable on such aspect, the respondent would sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue any notice u/s 143(2) of the Act and completed the assessment without issuing any notice u/s 143(2). Learned counsel for the assessee invited our attention to copy of order sheet placed at paper book pages 27 to 30 and our specific attention was invited to the fact that the jurisdictional Assessing Officer started the proceedings from 18/05/2016 by mentioning that case records were received from DCIT-6, Kanpur because of change of monetary limit. Learned counsel for the assessee submitted that on this copy of order sheet there is no mention of issue of notice u/s 143(2) of the Act and neither there is any mention of any order passed by Commissioner u/s 127 of the Act. Learned counsel for the assessee further took us to paper book page 31 where a copy of transfer memo dated 16/05/2016 transferring the record from DCIT-6 to Income Tax Officer, Ward-6(1) was placed. Our specific attention was invited to reason for transferring the case which was as modified monetary limits upto ₹ 20 lacs vide CIT order dated 28/04/2016. The Learned counsel for the assessee submitted that firstly this is not an order by Pr. CIT and moreover, there was no change in the monetary limit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot come to the rescue of the Department. 7. Learned D. R., on the other hand, submitted that the PAN at that time was lying with DCIT-4, Kanpur and therefore, he issued notice u/s 143(2) on 03/09/2015 and since the natural jurisdiction over the assessee was with DCIT-6, Kanpur, he also issued the notice u/s 143(2) on 03/09/2015 and the notices were duly served upon the assessee within the time limit as prescribed under the Act. Learned D. R. submitted that subsequently the Pr. CIT-2, Kanpur, vide order dated 28/04/2016, modified the monetary limits and ordered that jurisdiction over the cases having returned income below ₹ 20 lacs shall lie with the Income Tax Officer and jurisdiction over the cases with returned income above ₹ 20 lacs shall lie with ACIT and DCIT and accordingly, in view of the revised monetary limits, DCIT-6, Kanpur vide letter dated 16/05/2016 transferred the case record to the Income Tax Officer-6, Kanpur as the jurisdiction over the case lied with him and therefore, it was argued that the technical ground of jurisdiction with respect to issue of notice by the jurisdictional Assessing Officer is not sustainable in the eyes of law. It was fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is an admitted fact that two notices u/s 143(2) were issued by DCIT-4, Kanpur and DCIT-6, Kanpur on the same date i.e. 03/09/2015. The copies of these notices are placed at pages 41 and 42 of the paper book. Page 41 is the copy of notice issued by DCIT-4, Kanpur whereas page 42 is the copy of notice issued by DCIT-6, Kanpur. This is also an admitted fact that assessment was completed by the Assessing Officer, Ward-6(1), Kanpur. The Assessing Officer while framing the assessment himself has noted that statutory notice u/s 143(2) dated 03/09/2015 was issued by DCIT-4, Kanpur and DCIT-6, Kanpur and were duly served upon the assessee. The Assessing Officer has not mentioned about any fact of having issued notice u/s 143(2) by him. Learned D. R. had argued that the Pr. CIT-2, Kanpur, vide order dated 28/04/2016, had modified monetary limit and had ordered that the jurisdiction over the cases having returned income below ₹ 20 lacs shall lie with the Income Tax Officer and therefore, the case of the assessee was transferred from DCIT to Income Tax Officer. Learned D. R. has further placed reliance on section 127 which authorizes the continuation of assessment proceedings even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip in any case or class of cases, by general or special order, authorise [any income-tax authority, not being a Commissioner (Appeals)] to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law. [(c) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class or cases, by general or special order for reasons to be specified therein, relax any requirement contained in any of the provisions of Chapter IV or Chapter VI-A, where the assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to the following conditions, namely:- (i) the default in complying with such requirement was due to circumstances beyond the control of the assessee; and (ii) the assessee has complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed: Provided that the Central Government shall cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same [Principal Director General or Director General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner],- (a) where the [Principal Director General or Director General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner] to whom such Assessing Officers are subordinate are in agreement, then the 3774 [Principal Director General or Director General] or 3775 [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner] from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b) where the [Principal Director General or Director General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner] aforesaid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se which reads out as under: TRANSFER MEMO OFFICE OF THE DY. COMMISSIONER OF INCOME TAX-6 KANPUR Dated:16/05/2016 1. Name and address of the assessee: M/s Arti Securities Services Ltd. Shalimar, Ghaziabad-201005 2. PAN AADCK6717A 3. Status Com. 4. Details of IT/WT/GT records Assessment records 2014-15 (in one volume) 5. Details of pending assessments 6. Time barring pendency, if any Dec 2016 7. Details of audit objections 8. Details of penalty proceedings pending Assessment year Under section Enactment 9. Details of arrear demand: Assessment year (s) D CR No. Nature of demand A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the earlier instructions and shall be applicable with effect from 1-4-2011. The above CBDT instruction clearly states that for corporate assessees having income upto ₹ 20 lac, the assessment is to be done by Income Tax Officer. In the present case, admittedly the assessee is a corporate assessee and its returned income is less than ₹ 20 lac as the assessee had filed return for an income of ₹ 11,11,750/-. Therefore, as per the above instructions, the jurisdictional Assessing Officer was Income Tax Officer and not DCIT or ACIT who had issued noticed u/s 143(2) of the Act. It is also an admitted fact that jurisdictional Assessing Officer which is Income Tax Officer, Ward-6, Kanpur had not issued any notice u/s 143(2) of the Act. Therefore, in the case before us, the following final facts emerge: (i) The assessee is a corporate assessee. (ii) The assessee filed return of income declaring income of ₹ 11,11,750/-. (iii) The jurisdictional Assessing Officer was Income Tax Officer, Ward-6, Kanpur. (as per CBDT instruction No.1/2011) (iv) The statutory notice u/s 143(2) has not been issued by the jurisdictional Assessing Officer. (v) No order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and all other persons employed in execution of this Act are bound to observe and follow such orders, instructions and directions of the Central Board of Direct Taxes. The proviso to sub-section (1) of Section 119 recognizes two exceptions to this power. The first exception is that the CBDT cannot require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner. The second is with regard to interference with the discretion of the Commissioner of (Appeals) in exercise of his appellate functions. Sub-section (2) of Section 119 provides for the exercise of power in certain special cases and enables the CBDT, if it considers it necessary or expedient so to do for the purpose of proper and efficient management of the work of assessment and collection of revenue, to issue general or special orders in respect of any class of incomes or class of cases, setting forth directions or instructions as to the guidelines, principles or procedures to be followed by other income-tax authorities in the discharge of their work relating to assessment or initiating proceedings for imposition penalties. The powers of the CBDT are wide enough to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). On a perusal of the foregoing provision, it is evident that the provisions of this section are mandatory in nature. If the Assessing Officer considers it necessary or expedient to verify the correctness and completeness of the return then he is bound to serve a notice under this sub section on the assessee requiring him, on a specified date, either to attend at the AO's office or to produce or cause to be produced any evidence on which the assessee desire to rely in support of his return. The above view gets fortified by the decision of the Hon'ble Madras High Court in the case of COMMISSIONER OF INCOME-TAX v. GITSONS ENGINEERING CO. reported in [2015] 370 ITR 87, wherein it is held that, the word shall employed in section 143(2) of the Income tax Act, 1961, contemplates that the Assessing Officer should issue notice to the assessee so as to ensure that the assessee has not understated income or has not computed excessive loss or has not under paid the tax in any manner. It is therefore, clear that when the Assessing Officer considers it necessary and expedient to ensure that tax is paid in accordance with law, he should call upon the assessee to produce ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent framed by the AO cannot be challenged on the ground of non-issuance of notice by the ITO. The ld DR also referred to the provisions of Section 129 of the Act which allows the succeeding income tax authority to continue the proceedings from the stage at which the proceeding was left by his predecessor. The ld DR vehemently supported the order of lower authorities. 8. We have heard rival submissions and gone through facts and circumstances of the case. We have also perused the assessment records. The crux of the issue in the case is that the notice under section 143(2) of the Act was not issued by the ITO in terms of the instruction No. 1/2011 [F.No. 187/12/2010-IT(A-I)], dated 31.1.2011. As per the instruction the notice was to be issued by the ITO but the notice was issued by the ACIT. Therefore in view of above the notice issued by the ACIT is invalid and consequently the assessment framed by the ITO becomes void. Now the issue before us arises so as to whether the notice issued by the ACIT u/s 143(2) of the Act is without jurisdiction in terms of the aforesaid instruction. In this connection we consider it fit to incorporate the relevant portion of Instruction No.1/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(3) of the Act without jurisdiction. In similar facts and circumstances, the Co-ordinate Bench of this Tribunal has decided the issue in favour of assessee in the case of Ajanta Financial Services Pvt. Limited Vs ITO in ITA No. 1426/Kol/2011. We consider it fit to incorporate the relevant portion of the Tribunal order which is as under :- 5. We find that the Hon'ble Chhatishgarh High Court in the case of DCIT Vs. Sunita Finlease Ltd. (2011) 330 ITR 491 (Chh) has considered the same Instruction No. 9/2004 dated 20.09.2004 which are applicable in the present case also and quash the selection of scrutiny and completion of assessment by holding as invalid. Hon'ble Chattishgarh High Court in Sunita Finlease Ltd.'s case (supra) has considered section 119 of the Act by stating that Section 119 of the Act, empowers the Central Board of Direct Taxes to issue orders, instructions or directions for the proper administration of the Act or for such other purposes specified in sub-section (2) of the section. Hon'ble High Court further held that such an order, instruction or direction cannot override the provisions of the Act. Direction by issuing instructions to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categorized as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities. The facts and circumstances in the present case are that the selection of scrutiny in this case is also completed beyond the prescribed period as prescribed in Instruction No. 9/2004 dated 20.09.2004. The assessee's case was selected for scrutiny first time on 18.10.2004, as per copy of order sheet entry, and notice was issued fixing the hearing on 18.10.2004 itself. As per Instruction No. 9/2004 dated 20.09.2004, the process of selection of cases for scrutiny for returns filed up to 31.03.2004, in the present case assessee filed its return of income on 01.12.2003 must be completed by 15.10.2004. The factual position as noted by CIT(A) in his appellate order that notice u/s. 143(2) is dated 10.10.2004, is not supported by Ld. Sr. DR at the time of hearing rather assessee contested that this finding of fact is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2011. As the assessment proceedings u/s 143(3) of the Act have been held as invalid, therefore in our considered view the other issues raised by the assessee. 10. Similarly, Kolkata Bench of the Tribunal in the case of Sukumar Ch. Sahoo vs. ACIT in I.T.A. No.2073.Kol/2016, vide order dated 27/09/2017, has decided the similar issue by holding as under: 4. Brief facts of the case are that the assessee is an individual who filed his return of income for the year under consideration wherein he declared total income to the tune of ₹ 50,28,040/-. The Ld. AR for the assessee submitted that as per the CBDT Instruction No. 1/11 (F. No. 187/12/2010-IT(AT) dated 31.01.2011 CBDT fixed new monetary limit in Mufassil areas, according to which income above ₹ 15 lacs for non corporate assessee and ₹ 20 lacs for corporate returns has to be assessed by ACIT/DCIT. Thus, according to Ld. Counsel, since Haldia is a Muffasil area and instructions given by the CBDT is binding on the officers of the Department and since the assessee has declared more than ₹ 50 lacs as his returned income, then the scrutiny assessment can be done only by the ACIT/DCIT and not by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corporate person) who undisputedly declared income of ₹ 50,28,040/- in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the assessment order, it reveals that the statutory notice u/s. 143(2) of the Act was issued by the then ITO, Ward-1, Haldia on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by the AO. The AO noted that since the returned income is more than ₹ 15 lacs the case was transferred from the ITO, Ward-1, Haldia to ACIT, Circle-27 and the same was received by the office of the ACIT, Circle-27, Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act on the same day. From the aforesaid facts the following facts emerged: i) The assessee had filed return of income declaring ₹ 50,28,040/-. The ITO issued notice under section 143(2) of the Act on 06.09.2013. ii) The ITO, Ward-1, Haldia taking note that the income returned was above ₹ 15 lacs transferred the case to ACIT, Circle-27, Haldia on 24.09.2014. iii) On 24.09.2014 statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th other cases decided by Kolkata Bench of the Tribunal, the details of which are as under: (i) Sanat Kumar Sahana vs. ACIT, I.T.A. No.2202/Kol/2019 (ii) Dipti Kumar Sahana vs. ACIT, I.T.A. No.2203/Kol/2019 (iii) DCIT vs. Proficient Commodities Pvt. Ltd., I.T.A. No.1346/Lol/2016 (iv) Shake Akhtar Hossain vs. ACIT, I.T.A. No.2572/Kol/2019 (v) K.A. Wires Ltd. vs. Income Tax Officer, I.T.A. No.1149/Kol/2019 (vi) S.N. Ghosh Associates vs. ACIT, I.T.A. No.462/Kol/2019 10.2 We further find that Lucknow Bench of the Tribunal in the case of Bajrang Bali Industries vs. ACIT in I.T.A. No.724/Lkw/2017, vide order dated 30/11/2018 has allowed appeal of the assessee by declaring the assessment order void ab initio. In that case also the notice u/s 143(2) was issued by non jurisdictional Assessing Officer and the assessment records were transferred by a transfer memo and assessment was made by jurisdictional Assessing Officer. The Hon'ble Tribunal held the assessment order bad in law by holding as under: 5. We have heard the rival parties and have gone through the material placed on record. It is undisputed fact that the assessment order dated 11.03.2016 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is passed by judicial or quasi-judicial authority having no jurisdiction, it is an obligation of appellate court to rectify the error and set aside order passed by authority or forum having no jurisdiction. Though this case relates to notice u/s 148 however, the crux of the findings of Hon'ble jurisdictional High Court, after noting down the provisions of section 292BB are that only jurisdictional Assessing Officer can issue the statutory notice. For the sake of completeness, the relevant paragraphs starting from para 32 to 57 are reproduced below: 32. Now we come to legality of notice issued under Section 148. Admittedly, it was issued by a Designated Officer authorized to receive AIR information and make inquiry. Thereafter, said Designated Officer was supposed to furnish entire material to Competent A.O. for further action. 33. In the present case, notice under Section 148 was not issued by A.O. having jurisdiction over Assessee and instead it was issued by Designated Officer authorized to collect AIR information and make inquiry in this regard. No notice was issued under Section 148 admittedly by Jurisdictional A.O. 34. Section 148 clearly talks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not by Officer who has no jurisdiction for assessment/reassessment. 42. In Commissioner of Income Tax Vs. Rajeev Sharma 2011 (336) ITR 678 , Court observed provisions contained in Section 148 of Act, 1961 with regard to escaped assessment must be construed strictly with regard to procedure prescribed for escaped assessment. 43. The reason for issuance of notice by Competent A.O. is quite obvious inasmuch as such notice could have been issued only when concerned A.O. has reason to believe that some income has escaped assessment and recomputation/ reassessment is needed. Now such satisfaction can be of that A.O. only who has jurisdiction in the matter and not of any third party. 44. We, therefore, hold that in the present case, no valid notice under Section 148 was issued by Jurisdictional A.O. before making assessment/reassessment and, therefore, proceedings of reassessment pursuant to notice issued under Section 148 by an incompetent Officer are void and ab initio. 45. When a notice under Section 147/148 issued is a jurisdictional step, it cannot be treated to be mere irregularity curable under Section 292BB. In fact, Section 292BB has no application to a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 1990 (184) ITR 404 , Court said an admission or an acquiescence cannot be a foundation for assessment where the income is returned under an erroneous impression or misconception of law. 52. It is well settled that a jurisdiction can neither be waived nor created even by consent and even by submitting to jurisdiction, an Assessee cannot confer upon any jurisdictional authority, something which he lacked inherently. 53. Even if, it can be said that Assessee submitted to jurisdiction of A.O., law is that Assessee cannot confer jurisdiction on an authority who did not have the same and we find support from Commissioner of Income Tax Vs. Hari Raj Swarup and sons (1982) 138 ITR 462 (Alld.) . 54. In Mir Iqbal Husain Vs. State of U.P. 1963 (50) ITR 40 , it was held that requirement of valid notice cannot be waived. The mere fact that Assessee filed Return of Income pursuant to invalid notice would not render notice valid or validate subsequent proceedings which are vitiated in law for want of valid notice. 55. In Raza Textile Ltd. Vs. Income Tax Officer, Rampur (1973) 87 ITR 539 (SC) , Court said that it is incomprehensible to think that a quasijudicial authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 11.1 In the present case we have already held that statutory notice u/s 143(2) was not issued by the jurisdictional Assessing Officer and therefore, the reliance placed by Learned D. R. on 292BB is of no help to Revenue. 11.2 As regards the judgment of Hon'ble Supreme Court in the case of IVen Interactive Limited (supra), we find that though this judgment was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding change of address. No separate intimation was given to the Assessing Officer by the assessee regarding change of address. The Court held that mere mentioning of the new address on subsequent return without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. The court found that the assessee claimed to have filed a letter for change of address but such letter was never produced before any of the authorities. It was held that on the facts of the case, the notice issued on the address available on the PAN data base was proper and valid service of notice u/s 143(2) of the Act The court held that the change of address in the database of PAN is must, in case of change of the name of the company and/ or any change in the registered office of the corporate office of the assessee and the same has to be intimated to the Registrar of Companies in the prescribed format i.e., Form 18 and after completing the said requirement, the assessee is required to approach the Department with the copy of the said document and then the assessee is required to make an application for change of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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