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TMI Blog2023 (10) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... mat is to be found in the order passed under section 143(3) r.w.s. 263 of the Act, spelling out the particular category of exception that prevented allotting the DIN on that day. It is yet another violation. In the case of CIT vs. Brandix Mauritius Holdings Ltd. [ 2023 (4) TMI 579 - DELHI HIGH COURT] addressed this issue where the Revenue pleaded that is only a mistake, and held that to such case circular No. 19/2019, dated 14/08/2019 would apply. As referred to by us, paragraph 4 of the circular clearly reads that any communication which is not in conformity with paragraph 2 and paragraph 3 shall be treated as invalid and shall be deemed to have never been issued. It is, therefore, clear that any reason what-so-ever other than the exceptions mentioned in paragraph 3 would save the communication issued without DIN. We are of the considered opinion that for want of generation/quoting the DIN in the order dated 20/12/2019, such an order shall be treated to have never been issued and, therefore, shall not take any affect - Appeal of Revenue is dismissed. - SHRI RAMA KANTA PANDA, VICE PRESIDENT And SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER For the Assessee : Shri K.A. Sai Prasad, AR Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is not open for the assessee to file an additional ground for the first time before the Tribunal in an appeal filed by the Revenue so as to affect the Revenue adversely and such a course is against the law. 6. Per contra, learned AR submitted that such a course is permissible and as a matter of fact, no longer res integra. He placed reliance on the decision of the Hon ble Bombay High Court in the case of CIT vs. Hazarimal Nagji Co. 46 ITR 1168 (Bom) for this principle. As stated above, Insofar as the impact of non mentioning of DIN on the face of the assessment order, the assessee placed reliance on the Circular No. 19/2019, dated 14/08/2019 issued by the Central Board of Direct Taxes (CBDT) and the decision of Hon'ble Delhi High Court in the case of CIT vs. Brandix Mauritius Holdings Ltd. (supra). 7. Coming to the propriety of the assessee to maintain an additional ground in the appeal filed by the Revenue without resorting to cross appeal/objections or a petition under Rule 27 of ITAT Rules, the question that arises for consideration is whether the assessee could be permitted to worse of the Revenue in their own appeal. This question was dealt with in detail by the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. In view of this settled position of law, we are of the considered opinion that it is legitimate for the assessee to raise an additional ground which does not require any further investigation into facts, in the appeal filed by the Revenue and so long as the Revenue has got an opportunity of being heard on that ground, there is no legal impediment to permit such a ground and consider the same in furtherance of justice. 11. Having reached such a conclusion and hearing the parties on either side, we find that the impugned assessment order that was passed on 20/12/2019 under section 143(3) read with section 263 of the Act, does not bear the DIN. Assessee assails the same on the ground that the said order has to be treated as nonest in the eye of law for violation of the procedure prescribed by the CBDT vide Circular No. 19/2019, dated 14/08/2019 and submitted that to prevent the instances of not maintaining a proper audit trail of communication like notice, order, summons, letter and any correspondence issued, it IS mandated to maintain proper audit trail of all communication to the assessee without quoting a computer generated DIN on or after 01/10/2019. He also placed reliance on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may be issued manually, but shall contain a statement referring to the exceptional circumstances and also the fact that it was so issued without DIN with the approval of the Chief Commissioner/Director General of Income Tax. Vide paragraph 5, it is contemplated that when the communication is issued without the DIN, under exceptional circumstances mentioned in paragraph 3(i) to paragraph 3(iii), it has to be regularised within fifteen days, and in case of paragraph 3(v), manual communication for the reason thereof to be sent to Principal Director General of Income Tax (Systems) within seven days of such issuance of the communication. Paragraph 4, in unequivocal terms, mentions that any communication which is not in conformity with paragraph 2 and 3 shall be treated as invalid and shall be deemed to have never been issued. 15. In the case of CIT vs. Brandix Mauritius Holdings Ltd., (supra), the Hon'ble Delhi High Court held that the communication in relation to assessments, appeals, orders etc., which finds mention in paragraph 2 of the 2019 circular, albeit without DIN, can have no standing in law, having regard to the provisions of paragraph 4 of the 2019 circular. It is fu ..... 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