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TMI Blog2021 (12) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... nate delay, ought to be construed as an order passed beyond limitation, on the facts and circumstances of the case. 4. Additional grounds before the CIT(A): a) The notice issued under section 143(2) is bad in law, on the facts and circumstances of the case. b) The learned CIT(A) failed to appreciate, that the officer having jurisdiction, has not issued a notice under section 143(2) of the Act, and thus there is no assumption of jurisdiction to pass the order under section 143(3) and the order passed under section 143(3) of the Act, was required to be set aside a bad in law, on the facts and circumstances of the case. c) The authorities below failed to appreciate that it is settled position of law that "consent does not confer jurisdiction' on the facts and circumstances of the case. d) The learned CIT(A) was not justified in appreciating that the scrutiny was restricted to the verification of sundry creditors and there having been no order for conversion to a complete scrutiny, no verification or additions ought to have been made in respect of unsecured loans, on the facts and circumstances of the case. e) The learned CIT(A) failed to appreciate that the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as income of the appellant for the AY 2014-15, on the facts and circumstances of the case. 7. Grounds regarding addition on account of unsecured loans: a) The learned CIT(A) was not justified in law and on facts in confirming a sum of Rs. 1,30,98,413/- i.e. M/s. Fatemi Qardan Hasana Trust of Rs. 33,73,685/- and M/s. Hakimi Qardan Hasana Scheme Rs. 97,24,728/- and adding these unsecured loans received by the appellant from the above two entities, to the total income of the appellant is not in accordance with law and also on facts. b) The learned CIT(A) was not justified in appreciating that the loans of the family members were also considered in the appellants books and the difference was due to obtaining the confirmation in the appellant's hands alone, on the facts and circumstances of the case. c) The learned CIT(A) was not justified in stating that the appellant has filed additional evidence, which is contrary to fact, when the appellant has merely field ledger account of the subsequent years, which is available before the AO, supported by bank accounts to demonstrate the repayment of loans, on the facts and circumstances of the case. d) The learned CIT(A) failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, notice u/s. 143(2) was issued by ITO, Ward-2(3)(2) dated 28.08.2015. The said notice is placed at page 1089 of paper book. As per the said notice, the date for hearing was fixed on 08.09.2015. It is submitted that assessee sought adjournment on the event date whereby the Ld. AO transferred the file stating that the jurisdiction was with ITO, Ward-7(2)(2) by making an order sheet noting. The copy of the said order sheet notings is placed at pg 1224 of the paper book. The Ld. AR submitted that subsequently ITO, Ward - 7(2)(2) proceeded to issue notices seeking details of sundry creditors and the assessment order was passed by ITO, Ward-7(2)(2) on 30.12.2016. Against the assessment order, assessee filed appeal before Ld. CIT(A). 4. Before Ld. CIT(A), validity of passing the assessment order without issuing the notices u/s. 143(2) by the Ld. AO was raised by way of additional ground by application dated 21.10.2019. The Ld. CIT(A) while noting the additional grounds did not adjudicate the ground regarding non-issuance of notice u/s. 143(2) of the Act by ITO, Ward-7(2)(2) and decided the issues on merits. 5. Aggrieved by the order of Ld. CIT(A), the assessee has raised issues on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO, Ward 5(2). 28.08.2015 - the case was selected for scrutiny, notice u/s. 143(2) issued by ITO, Ward - 2 (3)(2) fixing the date of hearing on 08.09.2015. 08.09.2015 - assessee files an application for adjournment and the ITO, Ward - 2(3)(2) transfers the file stating the jurisdiction to be with ITO, Ward - 7(2)(2) by making order sheet entry. 30.12.2016 - ITO, Ward - 7 (2)(2) passes assessment order 8.2. In the paper book, assessee placed RTI application dated 12.10.2021, wherein assessee sought copies of notice issued by ITO, Ward-7(2)(2). The said RTI application is placed at page 1291-1292 of paper book. Subsequently on 15.07.2021, ITO, Ward-5(2)(1) issues certified copies of the following: Certified copy of notice u/s. 143(2) issued by the ITO, Ward- 2(3)(2) for the A.Y 2014-15 Certified copy of notice u/s. 142(1) issued by ITO, Ward-7(2)(2) for the AY 2014-15, already issued by ACT-C-5(2)(1) on 10.03.2020 Certified copy of the order sheet noting by the ITO, Ward-7(2)(2) for the A.Y 2014-15, already issued by ACT-C-5(2)(1) on 10.03.2020 Certified copy of proof of delivery for servicing the order u/s. 143(3) dated 30/13/2016 for the A.Y 2014-15 by ITO, Ward 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o questions of law were raised for consideration and decision of the High Court, they were: "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income Tax Act, 1961 within the prescribed time- limit for the purpose of making the assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income Tax (Appeals), the additions made under Section 68 of the Income Tax Act, 1961 should be deleted or set aside?" 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub-sections (2) and (3) of Section 143 will have mandatory application in a case where the assessing officer in repudiation of return filed in response to a notice issued under Section 158-BC(a) proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in affirmative and in favour of the appellant and against the Revenue. The Revenue thereafter applied to this Court for special leave under Article 136, and the same was granted, and hence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Blue Moon's case. 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 having certain infirmities to be proper and valid if there was requisite participation on part of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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