9911796707
TMI Blog2022 (4) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reason. 3. On the facts and circumstances of the case, the ld. CIT (A) has grossly erred in upholding the addition of Rs. 8,78,500/- u/s 68 of the Income Tax Act, 1961 without any cogent reason and hence needs to deleted. 4. On the facts and circumstances of the case, the ld. CIT (A) has grossly erred in confirming the disallowance made by the ld. AO of Rs. 18,62,147/- out of interest and bank charges without considering the submissions made and evidences adduced before him, thus disallowance so made needs to deleted. 5. On the facts and circumstances of the case, the ld. CIT (A) has grossly erred in confirming the disallowance made ld. AO of Rs. 22,47,127/- on account of interest paid on loan taken for construction of factory building which is totally wrong and needs to be deleted. 6. On the facts and circumstances of the case, the ld. CIT (A) has grossly erred in confirming the disallowance of Rs. 2,04,259/- out of certain expenses claimed by applying the arbitrary percentage which is wrong and against the principle of natural justice. 7. On the facts and circumstances of the case, the ld. CIT (A) has grossly erred in upholding the addition of Rs. 15,21,765/- made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s 263(1) of the IT Act dated 20.05.2010 for revisionary action under section 263. The ld. CIT-III, Jaipur passed an order under section 263 of the IT Act on 09.07.2010 after giving proper opportunity of being heard to the assessee. Being aggrieved, the assessee filed an appeal against this order before the ITAT Jaipur on 30.07.2010. Thus there were two appeals before the ITAT Jaipur, for the assessment year 2007-08, one against the order of ld. CIT (A)-III and another against the revisionary order of ld. CIT-III, Jaipur. The ITAT Jaipur Bench decided the appeals vide its order dated 30.09.2011 directing that a fresh order be made by the ACIT Circle-7, Jaipur taking into consideration the points raised by the ld. CIT-III, Jaipur in his revisionary order as well as any fresh issue which may come into the notice of the AO. On the direction of the ITAT, a fresh assessment was framed by the ACIT, Circle-7, Jaipur on 28.03.2013 by making new additions. Aggrieved by this order, the assessee preferred an appeal before the ld. CIT (A)-III, Jaipur on 25.04.2013. The ld. CIT (A)-III, Jaipur passed the order under section 250 of the Act on 18.03.2015 by allowing some relief. The assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the main issue involved in this case is regarding the issue of notice u/s 143(2) of the IT Act, 1961 by the AO. The assessee was required to file its return of income for the A.Y. 2007-08 by 31st October, 2007 but it filed belated return under section 139(4) on 30.03.2008. The time limit for issue of notice under section 143(2) is upto 31st March, 2009 i.e. within 12 months from the end of the month in which return was filed. Accordingly, the notice under section 143(2) by the AO should have been issued on or before 31st March, 2009 but the AO issued the notice under section 143(2) on 28th August, 2009 and served on the assessee on 02.09.2009 which was beyond the time limit prescribed under the IT Act, 1961. The provisions of section 143(2) of the IT Act, 1961 reads as under :- " Where a return has been furnished under section 139 or in response to a notice issued u/s 142(1), the AO shall - (i) Where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the AO is cancelled. Reliance is placed on the decision of Lucknow Bench of the Tribunal in case of Tirupati Mercantile Ltd. vs. Dy. CIT (Luck-Trib.) (2004) 090 TTJ 0436) wherein the Tribunal held that the issue of notice u/s 143(2) is beyond limitation hence assessment cannot be said to be validly made. Under the circumstances, the assessment order being void ab initio, therefore, question of confirmation thereof does not arise and is liable to be quashed. The Hon'ble Supreme Court in the case of ACIT vs. M/s. Hotel Blue Moon (2010) 321 ITR 362 (SC) has considered the effect of section 143(2) of the IT Act and held as under :- " If an assessment is to be completed u/s 143(3), notice under section 143(2) should be issued within one year from the date of filing of return. Omission on the part of the AO to issue notice u/s 143(2) cannot be a procedural irregularity and the same is not curable and therefore, the requirement of notice u/s 143(2) cannot be dispensed with." The ld. D/R furnished the following case laws in support of the claim of the revenue :- Sudev Industries Limited vs. CIT (2018) Taxman.com 109 (SC) Kachwala Gems vs. JCIT (2007) 158 Taxman 71 (SC) CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsed with. The other important feature that requires to be noticed is that the Section 158 BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the assessing officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This Section even speaks of subsections which are to be followed by the assessing officer. Had the intention of the legislature was to exclude the provisions of Chapter XIV of the Act, the legislature would have or could have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the assessing officer, if for any reason, repudiates the return filed by the assessee in response to notice under Section 158 BC(a), the assessing officer must necessarily issue notice under Section 143(2) of the Act within the time prescribed in the proviso to Section 143(2) of the Act. Where the legislature intended to exclude certain provisions from the ambit of Section 158 BC(b) it has done so specifically. Thus, when Section 158 BC(b) specifically refers to applicability of the proviso thereto cannot be exclude. We may also notice here itself that the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the revenue, since we do not see any reason to restrict the scope and meaning of the expression 'so far as may be apply'. In our view, where the Assessing Officer in repudiation of the return filed under section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143. 17. Section 158BH provides for application of the other provisions of the Act. It reads : "Save as otherwise provided in this Chapter, all the other provisions of this Act shall apply to assessment made under this Chapter". This is an enabling provision, which makes all the provisions of the Act, save as otherwise provided, applicable for proceedings for block assessment. The provisions which are specifically included are those which are available in Chapter XIV-B of the Act, which includes section 142 and sub-sections (2) and (3) of section 143. 18. On a consideration of the provisions of Chapter XIV-B of the Act, we are in agreement with the reasoning and the conclusion reached by the High Court." Thus the requirement of notice under section 143(2) of the Act is a mandatory condition and cannot be dispensed with. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion only after issuing a notice under Section 143 (2). Even the participation of the assessee would not provide the benefit under Section 292BB to the Revenue. The requirement that a notice be issued is mandatory and the Assessing Officer has no other option but to issue the notice before commencing the jurisdiction. Here, we draw support from the judgment of the Hon'ble Supreme Court in Asstt. CIT v. Greater Noida Industrial Development Authority [2015] 379 ITR 14 (All.), wherein it was held as under: "Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued." 34. The only benefit that Section 292BB obtains to the assessing officer is that after the issuance of such notice the assessee appears and participates in the proceedings, then he shall not he heard, subject to the proviso to the said section, that he had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
