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TMI Blog2024 (2) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... angari [ 2017 (10) TMI 1079 - ITAT MUMBAI] which in our opinion was the right approach to be adopted, accordingly, in the present case the return filed by the assessee though belatedly, which has been recognised by issuing a valid acknowledgement, subsequently the same was E-verified by the assessee and has been duly accepted by the e-portal of the department. AO has acted upon such return therefore the same cannot be treated as a non-Est return. Mandation of issuance of notice u/s 143(2) in completing the assessment u/s 147 r.w.s. 143(3) - As in the case of Shri Dev Narayan Sahu [ 2022 (5) TMI 110 - ITAT RAIPUR] wherein it has been decided that, issuance of notice u/s 143(2) is a sine-qua-non for framing of an assessment u/s 143(3), this view is well supported by the judgment of M/s Hotel Blue Moon[ 2010 (2) TMI 1 - SUPREME COURT] , wherein as held that issuing of notice u/s 143(2) of the Act is mandatory and not a procedural mistake, if the notice is not served within the prescribed period then assessment order would be invalid. In view of such observations, we are of the considered opinion that the order passed u/s 147 r.w.s. 143(3) in the present case was invalid on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, on the facts and in the circumstances of the case and in law, the Learned PCIT (Central), Bhopal has erred in holding that the order dated 30.12.2019 passed by the Learned A.O. u/s 147 r.w.s 143(3) of the Income Tax Act, 1961 was erroneous and prejudicial to the interests of revenue and thereby setting aside the same. 3. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Appellant submits that the order passed by the Learned A.O. was neither erroneous nor prejudicial to the Interest of the Revenue and hence the revision of the same by the Learned PCIT (Central), Bhopal u/s 263 of the Income Tax Act, 1961 is erroneous and bad-in-law. 4. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the learned A.O had not made only adequate inquires, but had also undertaken necessary verification based on the details/documents sought from the appellant during the course of assessment proceedings, hence, the assessment order dated 30.12.2019 passed by learned AO is neither 'erroneous' nor 'prejudicial' to the Interest of the Revenue. 5. Without prejudice to the above, on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by issuing a notice u/s 148 on 30.03.2019. In response to the notice u/s 148 of assessee has filed his return of income on 01.06.2019 i.e., after 30 days from the date of notice u/s 148, declaring total income of Rs. 8,71,310/- shown in the return of income, which as it was accepted by the Ld AO. 4. The case of the assessee was subsequently perused by the Ld. PCIT (Central), Bhopal. On examination of assessment records Ld. PCIT has considered it appropriate to show cause the assessee u/s 263(1) of the I.T. Act, accordingly, a notice was issued on 14.01.2022, the contents of the notice issued u/s 163 are extracted as under: Notice u/s 263 of the Income Tax Axt, 1961- Show Cause- reg. Please refer to the above. Assessment order u/s 147 r.w.s 143 (3) of the Income Tax Act for A.Y. 201213 was passed by the Assessing Officer vide order dated 30.12.2019. Assessment records were called from the Assessing Officer & examined. Certain issues emerged from the examination of the assessment records which are discussed herein: Examination of the records revealed that credible information about advance of cash loan and interest earned thereon by Shri Anil Nachrani to various persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2012 (reported in AIR 2013 SC/58/(2013)/SCC/465. In view of the above discussion, it becomes prima facie clear that the AO has passed the assessment order dated 30.12.2019 without making any enquiry or verification which he should have been made during the assessment proceedings making the assessment order prima facie erroneous in so far as it is prejudicial to the Interest of revenue within meaning of explanation 2(a) of section 263(1) of IT Act. Accordingly, you are hereby given an opportunity of being heard as per section 263(1) of the Income Tax Act, 1961 to present yourself in person or through an authorized representative or file submission through online mode on 24.01.2022 at 11:30 A.M. to explain your case before the Pr. Commissioner of Income Tax (Central), Bhopal. In case, no reply is received by stipulated date, it will be presumed that you have nothing to say in the matter and a decision will be taken on the basis of records available in this office. 5. In response to aforesaid notice u/s 263(1), the authorized representative of the assessee appeared on 03.02.2002 before the Ld. PCIT, has submitted a response on behalf of the assessee. Assessee's submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Income filed in response to the notice u/s 148 is placed on Page No 6 to 9 of the Paper Book. The Learned A.O did not issue any notice u/s 143(2) of the Income Tax Act, 1961 as mandated u/s 143. (3) The Learned A.O passed the assessment order u/s 143(3) r.w.s. 147 vide order dated 30.12.2019, copy of the assessment order passed by the Learned A.O is placed on Page No 10 to 15 of the Paper Book. (4) Assessment was completed u/s 143(3) r.w.s. 147 only which is self-evident from the following:- Sl. No. Particulars Following Page No. of Paper Book- 2 1. Copy of order u/s 7(1) of the Right to Information Act, 2005 dated 09.08.2023 bearing F.N0. DCIT(Central1)/RPR/RT1/ 2023-24 passed by the Learned DCIT, Central Circle-I, Raipur 178-179 2. Copy of Income Tax Computation Form dated 30.12.2019 u/s 143(3) 180-181 3. Copy of Income Tax Computation Form dated 28.03.23 u/s 143(3) r.w.s. 263. 182 4. Copy of order u/s 143(3) r.w.s. 263 of the Income Tax Act, 1961 dated 28.03.23 183 -206 (5) Kind attention is invited to following also: - (a) Page No. 1 of impugned order u/s 263. (b) Page No.2 of impugned order u/s 263. (c) Page No.14 of impugned order u/s 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Learned A.O is bad-in-law and non-Est then the Learned PCIT cannot assume jurisdiction over such assessment order which does not exist in the eyes of law. S. N0. TITLE CITATION AUTHORITY Following age No. of the CLC 1. PCIT vs. Badal Prakash Jindal, HUF, Bargarh I.T.A. Nos. 8, 7, 9 & 10 of 2023 dated 02.03223 The Hon'ble High Court of Orissa at Cuttack 52 - 62 of LPB-3 2. Maruti Clean Coal and Power Ltd. vs. PCIT-I, Raipur ITA No. 55/ RPR/2021 dated 31.10.2022 The Hon'ble ITAT, Raipur Bench 63 - 120 of LPB-3 3. Minimax Commerce (P.) Ltd. vs. ACIT, Raipur (2021) 133 taxmann.com 188 Hon'ble ITAT, Raipur Bench 17-21 of LPB-I 4. Keshab Narayan Banerjee vs. CIT (1998) 66 CCH 0874 Hon'ble High Court of Calcutta 22 - 29 of LPB-I 5. Parveen Kumar Mittal vs. PCIT (2021) 63 CCH 0256 Hon'ble ITAT, Chandigarh 30-40 of LPB-I 6. Supersonic Technologies (P) Ltd. vs. PCIT (2019) 175 DTR 30 Hon'ble ITAT, Delhi Bench 41-60 of LPB-I 7. Concord Infra Projects Pvt. Ltd. vs. PCIT (2021) 63 CCH 0117 Hon'ble ITAT, Kolkata Bench 61 -71 of LPB-I 8. Pioneer Distilleries Limited vs. PCIT-I, Aurangabad ITA No. 479/PUN/2017 Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bom) 392 The Hon'ble High Court of Bombay 30 - 32 of LPB-3 2. Travel Designer India (P) Ltd. vs. DCIT (2020) 315 CTR (Guj) 800 The Hon'ble High Court of Gujarat 33 - 41 of LPB-3 6.1(g) Assessing officer having not intimated any defect in the Return to the assessee and acted upon the return, he was not justified in treating the return as invalid on the ground of belated E-verification. Assessee places reliance on following judicial pronouncement: - Sl. No TITLE CITATION AUTHORITY Following Page No. of the CLC 1. Fibers & Fabrics International (P) Ltd. vs. DCIT (2016) 182 TTJ (Bang) 374 The Hon'ble ITAT, Bangalore 'C' Bench 42 - 51 of LPB-3 Second Argument: (7) Information received from Investigation Wing formed the basis for reason to believe: The Learned A.O initiated the reassessment proceedings in the light of information received from the Investigation Wing which is evident from the bare reading of contents of Reason to Believe, copy whereof is placed on Page No. 80 to 81 of the Paper Book, thus, the Learned A.O was conscious about the information and documents received from the Investigation Wing. 7.2 Specific queries raised vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is bad-in-law also due to the following reasons: - 8.2 The proceedings were initiated based on borrowed satisfaction, in this regard, the assessee relies on following judicial pronouncements: - S. NO. TITLE CITATION AUTHORITY Following age No. of the CLC 1. PCIT vs. Meenakshi Overseas Ltd. (2017) 395 ITR 677 (Del) Hon'ble Hig Court of Delhi 119 - 127 of LPB-I 2. ACIT vs. Dhariya Construction Com an (2010) 328 ITR 515 (SC Hon'ble Supreme Court of India 128 - 128 of LPB-I 3. CIT vs. Kamdhenu Steel & Alloys Ltd. & Ors. (2012) 248 CTR (Del) 33 Hon'ble Hig Court of Delhi 129 - 152 of LPB-I 4. Sarthak Securities Co. Ltd. vs. ITO (2010) 329 ITR 110 (Del) Hon'ble Hig Court of Delhi 153 - 160 of LPB-I The Learned A.O did not carry out any independent enquiry or Investigation or analysis of the information received by the Learned A.O from the Investigation Wing. 8.3 The reason to believe recorded by the Learned A.O is vitiated by the vice of borrowed satisfaction and non-application of mind, hence, the proceedings- initiated u/s 148 is bad-in-law and therefore, the order passed u/s 263 is also bad-in-law and liable to be quashed. Prayer: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; pursuant to the notice under u/s 148 on 10th Aug., 2010, the same was acted upon by the AO and a Notice under s. 143(2) was issued to the assessee, followed by culmination of the same into an assessment under s. 143(3) r/w s 147 when issuance of a notice under s. 143(2) pre supposes the availability of a 'return of income' of the assessee on record, therefore, now when in the present case e AO acted upon the 'return of income' filed by the assessee, and issued a notice under s. 143(2), which thereafter had culminated into an assessment under s. 147 r/w s. 143(3), therefore, it would not be permissible on the part of the Revenue to turn around claim that no valid 'return of income' was filed by the assessee." 9. Ld. AR advanced another argument that the issue pertaining to invalid return was never confronted to the assessee by the Ld. AO, during the assessment proceedings. 10. Afterwards, Ld. AR drew our attention to the decision in ITA No. 32/RPR/2018, in the case of Shri Dev Narayan Sahu vide order dated 24/04/2002 referring to the issue that, in case no notice u/s 143(2) has been issued to the assessee, the order passed u/s 143 (3) r.w.s. 147 is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /documents vide S/. No. (i) to (ix) of the notice. As per sub section 2 of Section 143 " whereas return has been furnished u/s.139 or in response to a notice in under sub section (1) of Section 142, the AO sha// serve on the assessee a notice requiring him either to attend the office of the AO or to produce or cause to be produce before the AO any evidence on which the assessee may re/y in support of the return". After the notice u/s.143(2) is issued, order is passed u/s.143(3). In the present case after issue of notice u/s.143(1) as discussed above, the AO has issued another notice dated 04/10/2016 requiring the assessee to attend the office persona//y or through any authorized representative along with the required information, documentary evidence, bank account etc. on 14/10/2016 at 3.30 pm. As can be seen this notice has all the ingredients of a notice u/s.143(2) a/though the section has not been specifically mentioned. Obviously, this notice has to be viewed as a notice u/s.143(2). Therefore, passing of assessment order u/s.143(3)/147 has been as per Act and appellant's allegation being without basis is hereby dismissed." 7. After having given a thoughtful con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed view, as stated by the assessee before the CIT(Appeals), and rightly so, in the absence of any return of income having been filed by him, no assessment u/s.143(3)/148 of the Act could have been framed in his hands. Adverting to the observation of the CIT(Appeals) that notice(s) issued u/s.142(1) of the Act, dated 16.09.2016 and 04.10.2016 could be viewed as a notice u/s.143(2) of the Act, though, is not germane to the claim of the assessee, but we may herein clarify that the same is even otherwise absolutely misconceived and misplaced. In our considered view, the framing of an assessment u/s.143(3) of the Act presupposes the issuance of a notice u/s.143(2), the existence of which by no means or stretch of imagination can be substituted by a notice issued u/s.142(1) of the Act. Our aforesaid conviction that issuance of notice u/s.143(2) of the Act is a sine-qua-non for framing of an assessment u/s.143(3) of the Act can safely be gathered from the judgment of the Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax Vs. M/S. Hotel Blue Moon, (2010) 321 ITR 362 (SC). It has been held by the Hon'ble Apex Court that the issue of notice u/s.143(2) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0256 Hon'ble ITAT, Chandigarh 6. Supersonic Technologies (P) Ltd. vs. PCIT (2019) 175 DTR 30 Hon'ble ITAT, Delhi Bench 7. Concord Infra Projects Pvt. Ltd. vs. PCIT (2021) 63 CCH 0117 Hon'ble ITAT, Kolkata Bench 8. Pioneer Distilleries Limited vs. PCIT-I, Aurangabad 479/PUN/2017 Hon'ble ITAT, Pune Bench 13. From the aforesaid list of case laws, identical issue, as the matter in the present case raised has been delt with by the coordinate bench of ITAT, Raipur, in the case of Maruti Clean Coal and Power Ltd. vs. PCIT-I, Raipur in ITA No. 55/RPR/2021 dated 31.10.2022, That, "Whether the assessee can challenge the validity of an assessment order during the appellate proceedings pertaining to examination of validity of order passed u/s 263" and "If the impugned assessment order passed u/ s 143(3) was illegal or nullity in the eyes of law, then, whether the CIT had a valid jurisdiction to pass the impugned order u/ s 263 to revise the non-Est assessment order?", where in coordinate bench of the Tribunal has held that that the CIT cannot revise an order which is non- Est in the eyes of law, relevant extract from the order is as under: 28. In our considered vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first issue that arises for our consideration is whether the assessee can challenge the jurisdictional validity of order passed u/ s 143(3) in the appellate proceedings taken up for challenging the order passed u/ s 263? If we analyse the nature of both of these proceedings, which are under consideration before us, we find that the original assessment proceedings can be classified in a way as 'primary proceedings'. These are, in effect, basic foundational proceedings and akin to a platform upon which any subsequent proceedings connected therewith can Rest upon. The proceedings-initiated u/s 263 seeking to revise the original assessment order is off shoot of the primary proceedings and therefore, these may be termed as 'collateral proceedings' in the legal framework. The issue that arises here is whether any illegality/invalidity in the order passed in the 'primary proceedings' can be set up in the 'collateral proceedings' and if yes, then of what nature? 8.1. We have analysed this issue carefully. There is no doubt that after passing of the original assessment order, the primary (i.e. original proceedings) had come to an end and attained finality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at came up before Hon'ble Supreme Court in the case of Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] 1 SCR 117 the facts were that the appellant in that case had undervalued the suit at Rs. 2,950 and laid it in the court of the Subordinate Judge, Monghyr for recovery of possession of the suit lands and mesne profits. The suit was dismissed and on appeal it was confirmed. In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11. The value of the appeal was fixed at Rs. 9,980. A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the decree of the District Court was a nullity. Alternatively, it was contended that it caused prejudice to the appellant. In considering that contention at page 121, a four Judge Bench of Hon'ble Supreme Court speaking through Vankatarama Ayyar, J. held that: "It is a fundamental principle well-Established that a decree passed by a Court without jurisdiction is a nullity, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court in the cases of Superintendent of Taxes vs Onkarmal Nathmal Trust (AIR 1975 SC 2065) and Dasa Muni Reddy v. Appa Rao (AIR 1974 SC 2089). In the first of these decisions, it was pointed out that revenue statutes protect the public on the one hand and confer power upon the State on the other, and the fetter on the jurisdiction is one meant to protect the public on the broader ground of public policy and, therefore, jurisdiction to assess or reassess a person can never be waived or created by consent. This decision shows that the basic principle recognized in Kiran Singh (supra) is applicable even to revenue statutes such as the Income Tax Act. Dasa Muni Reddy (supra) is a judgment where the principle of 'coram non judice' was applied to rent control law. It was held that neither the rule of Estoppel nor the principle of res judicata can confer the Court jurisdiction where none exists. Here also the principle that was put into operation was that jurisdiction cannot be conferred by consent or agreement where it did not exist, nor can the lack of jurisdiction be waived. 8.6. These judgments were subsequently noticed by Hon'ble Gujarat High Court in the case of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Supreme Court in Onkarma1Nathmal Trust (supra) and Dasa Muni Reddy (supra) held that the Tribunal was in error in holding that the Question of jurisdiction became final when it passed the earlier remand order. It was held that neither the Question of res judicata nor the rule of Estoppel could be invoked where the jurisdiction of an authority was under challenge. According to Hon'ble Gujarat High Court, the rule of res judicata cannot be invoked where the Question involved is the competence of the Court to assume jurisdiction, either pecuniary or territorial or over the subject matter of the dispute. Hon'ble High Court further held that since neither consent nor waiver can confer jurisdiction upon the Assessing Officer where it did not exist, no importance could be attached to the fact that the assessee, in the first round of proceedings, expressly gave up the plea against the erroneous assumption of jurisdiction by the assessing authority. According to the Hon'ble Court, the "finality or conclusiveness could only arise in respect of orders which are competent orders with jurisdiction and if the proceedings of reassessment are not validly initiated at all, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set up the Question of validity of the assessment in the appeal against the levy of penalty. 8.9. We also derive support from another judgement of Hon'ble Bombay High Court in the case of Inventors Industrial Corporation Ltd vs CIT 194 ITR 548 (Bombay) wherein it was held that assessee was entitled to challenge the jurisdiction of the AO to initiate re-assessment proceedings before the CIT(A) in the second round of proceedings, even though he had not raised it in earlier proceedings before the Assessing Officer or in the earlier appeal. 8.10. Thus, on the basis of aforesaid discussion we can safely hold that as per law, the assessee should be permitted to challenge the validity of order passed u/ s 263 on the ground that the impugned assessment order was non-Est, and we hold accordingly." (B). Answering the second issue, i.e., if the order passed u/ s 143(3) was illegal or nullity, then, whether the CIT had a valid jurisdiction to pass the impugned order u/s 263 to revise the non-Est assessment order, the tribunal answered in the negative. For the sake of clarity, the relevant observations of the tribunal in context of the aforesaid issue are culled out as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / s 263 is quashed." 10.2. It is further noticed by us that similar view has been taken by Chandigarh Bench of the Tribunal in the case of Steel Strips Ltd (supra). 11. Thus, after taking into account all the facts and circumstances of the case, we find that in this case, the original assessment order passed u/s 143(3) dt 24-10-2013 was null & void in the eyes of law as the same was passed upon a non-existing entity and, therefore, the Ld. CIT could not have assumed jurisdiction under the law to make revision of a non-Est order and, therefore, the impugned order passed u/ s 263 by the Ld. CIT is also nullity in the eyes of law and therefore the same is hereby quashed." It may at this stage be relevant and pertinent to point out that while for the aforesaid order of the tribunal had thereafter been approved by the Hon'ble High Court of Bombay vide its order passed in ITA No.1168/2017 dated 28.09.2021, but as the aforesaid view of the tribunal on the issues in Question before us was not carried by the revenue any further in appeal before the Hon'ble High Court, therefore, the same having been accepted by the department had already attained finality. Our aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther find that the ITAT, Delhi in the case of Krishan Kumar Saraf Vs. Commissioner of Income Tax, Hissar, ITA No.4562/De1/2011, dated 24.09.2015 had also taken a similar view. It was observed by the tribunal that the CIT cannot revise an order which is non-Est in the eyes of law. In the said case the assessee in the course of the appellate proceedings which had originated from the order passed by the CIT under Sec. 263 of the Act had assailed the validity of the order passed u/ s 263, for the reason that the notice u/ s 143(2) was issued beyond the stipulated time period. The department objected to the aforesaid challenge thrown by the assessee to the validity of the assessment order on the ground that as the assessee had not challenged the assessment order, therefore, the same had attained finality. However, the said contention of the revenue was turned down by the tribunal by relying on the order of the Hon'ble High Court of Delhi in the case of CIT Central-I Vs. Escorts Farms Pvt. Ltd., 180 ITR 280(De1) on the ground that the CIT could not have revised a non-Est order, The relevant observations of the tribunal are for the sake of clarity culled out as under: 16. Admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncur with the Id. AR that now when the impugned order of reassessment under Sec. 143(3) r.w.s 147, dated 30.12.2018 in itself had been passed on the basis of invalid assumption of jurisdiction by the AO, and thus, is invalid and bereft of any force of law; or in fact non-Est in the eyes of law, therefore, the same could not have been revised by the Pr. CIT under Sec. 263 of the Act. 14. Taking shelter of the aforesaid decision in the case of Maruti Clean Coal and Power Ltd. (supra) of the ITAT, Raipur, Ld. AR submitted that the assessee has filed a valid return may be after the date as prescribed in the notice u/s 148 but the same cannot be considered as non-Est, as held in the case of Smt. Amina Ismile Rangari (supra), Therefore, the order passed u/s 143(3) r.w.s. 147 by the Ld AO in the present case should be branded as a non-Est assessment order on account of non- issuing of a notice u/s 143(2), which is mandatory under the provisions of law, thus, the same is liable to be treated as without jurisdiction, Illegal, bad in law and accordingly, the revisionary proceedings initiated and order passed on the foundation of such non-Est order are liable to be set aside by quashing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case, we find that after the assessee filed annexure A 1 reply, no further notice is required, because reply was already filed by the appellant. The procedure under section 143(2) of the Act is to ensure that an adverse order is issued only after proper opportunity is given to the assessee. In this case, it is conceded that the assessee got opportunity to file reply and detailed reply was in fact filed and the reassessment notice, and the final order were also issued within the time limit prescribed under the Act. 12. From the above, it is obvious that the procedure under Section 143(2) is intended to ensure that an adverse order is passed against the assessee only after affording the assessee a proper opportunity. Therefore, the Question to be considered is whether the assessee in case had such an opportunity. It is in this context, the notices that were issued to the assessee assumes importance. Reading of the reasons recorded and communicated to the assessee, Annexure E notice posting the ease, and Annexure I notice, show that the assessee was put on notice the inadmissibility of the reduction from the total income made by it and the assessee by its Annexure C objections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that the Ld. PCIT has acted beyond the available jurisdictional rights with him to assume the powers to invoke revisionary proceedings u/s 263, wherein the assessment order which has been chosen to be revised itself was an assessment void ab initio and at nullity in the eyes of law. It was, therefore, the prayer of the assessee that the order u/s 263 is liable to be quashed. 22. We have considered the rival submissions, perused the material available on record and judicial pronouncements relied upon by the assessee as well as by the revenue. In the present case the admitted facts are that the assessee's case was reopened u/s 147/148 on 30.03.2019 by issuing of notice as per the provisions of the Act. The assessee was required to furnish a return in response to the said notice u/s 148 by 30.04.2019, however, the assessee has filed the requisite return beyond the stipulated date, on 01.06.2019. However, Ld. AO has acted upon the said return and completed the assessment u/s 147 r.w.s. 143(3). Assessee's case was subsequently selected for revisionary proceedings u/s 263, wherein assessee has objected to the said proceedings stating that the assessment which was taken-up f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the present case the return filed by the assessee though belatedly, which has been recognised by issuing a valid acknowledgement, subsequently the same was E-verified by the assessee and has been duly accepted by the e-portal of the department. The Assessing officer has acted upon such return therefore the same cannot be treated as a non-Est return. 24. The second question is regarding issuance of notice u/s 143(2) in completing the assessment u/s 147 r.w.s. 143(3), respectfully following the principle of law laid down by Hon'ble Apex Court in various cases based on which coordinate bench of ITAT, Raipur has taken a view in the case of Shri Dev Narayan Sahu (supra) wherein it has been decided that, issuance of notice u/s 143(2) is a sine-qua-non for framing of an assessment u/s 143(3) of the Act, this view is well supported by the judgment of Hon'ble Apex Court in the case of ACIT vs M/s Hotel Blue Moon (2010) 321 ITR 362 (SC), wherein Hon'ble Apex Court has held that issuing of notice u/s 143(2) of the Act is mandatory and not a procedural mistake, if the notice is not served within the prescribed period then assessment order would be invalid. In view of such observations, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Padinjarekara Agencies Pvt. Ltd. (supra), it has been held that the procedure u/s 143(2) is intended to ensure that an adverse order is passed against the assessee only after affording the assessee a proper opportunity. The assessee in the present case had submitted return of income and necessary information like ledger account, bank statement, balance sheet, form 26AS, summary of capital account, computation of income and audit report etc. which were examined by AO, such facts shows that the opportunity was duly offered to the assessee, therefore, the judgment in the case of Pandinjarekara Agencies Pvt. Ltd. (supra), may be somehow relevant on the facts and circumstances of the present case, but following the hierarchy and judicial discipline we are inclined to follow the law laid down by the Hon'ble Apex Court over the decisions of Hon'ble High Courts, therefore, the present case which is squarely covered by the decision of the Hon'ble Apex Court in the case of CIT vs Hotel Blue Moon (supra), thus an assessment order u/s 143(3), dehors issuing a notice u/s 143(2) has to be held as non-Est. 28. On the basis of aforesaid observations, we coincide and convinced with the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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