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TMI Blog2024 (10) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, the A.O was required to issue notice u/s. 143(2) of the Act and further proceed in the matter. We are unable to persuade ourselves to subscribe to the conations of the revenue to cover the issue under the scope of section 292BB, thus, in present case the assessment framed by the A.O u/s. 147 dehors valid assumption of jurisdiction on account of non-issuance of notice u/s 143(2) cannot sustain, thus is liable to be quashed and we do so. Decided in favour of assessee. - Shri Ravish Sood, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : Shri Yogesh Sethia, CA For the Revenue : Dr. Priyanka Patel, Sr. DR ORDER PER ARUN KHODPIA, AM: The present appeal filed by the revenue is directed against the order passed by the Commissioner of Income-Tax (Appeals), Bilaspur, dated 29.03.2016, which in turn arises from the order passed by the A.O under Sec.147 of the Income-tax Act, 1961 (in short the Act ), dated 27.05.2014, for the assessment year 2009-10. The revenue has assailed the impugned order on the following grounds of appeal before us: (i) The Ld. CIT(A) has erred in deleting the disallowance of Rs. 58,50,226/- made u/s. 40(a)(ia) read with section 194C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n' but said ground was not pressed during hearing of the appeal. The appeal was partly allowed and the ground relating to disallowance made out of contract payments was fully allowed. 4. Aggrieved and dissatisfied, the appellant revenue filed second appeal before this Hon'ble Tribunal and it was dismissed on the grounds of violating circulars on monetary limits. 5. The appellant Revenue filed Miscellaneous Application and that was allowed being MA No.8/RPR/2019. The present appeal is recalled matter and the appellant seeks leave of this Hon'ble Tribunal to challenge the validity of initiation of proceedings u/s. 147 of the Act on the following grounds:- (a) There is no satisfaction or bona fide belief recorded in the reasons about escapement of income as required u/s. 147 of the Act. (b) The approval granted u/ s.151 of the Act by the designated authority is mechanical and without application of mind hence invalid. 6. The learned Assessing Officer recorded reasons on 02/08/2013 u/s. 148(2) and copy of the same is enclosed herewith as ANNEXURE-1. He had also obtained approval of the designated authority, i.e. Joint Commissioner of Income Tax, Range Korba possibly on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ao or appellate authority below, the issue is covered u/s 292BB, so the addition made by the A.O be sustained and the order of the CIT(Appeals) be set-aside. 7. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to support their contentions. 8. We are of the view that the issuance of a valid notice u/s. 143(2) is a sine-qua-non for framing of a valid assessment is no more res-integra in light of the judgments of the Hon ble Apex court in the cases of, viz. (i) ACIT Anr. Vs. Hotel Blue Moon [2010] 321 ITR 362 (SC); and (ii) CIT Vs. Laxman Das Khandelwal (2019) 417 ITR 325 (SC). 9. We find that the Hon ble Apex Court in the case of ACIT Anr. Vs. Hotel Blue Moon [2010] 321 ITR 362 (SC) had quashed the assessment in absence of a notice u/s. 143(2) of the Act having been issued by the A.O. For the sake of clarity, the observation of the Hon ble Apex Court is culled out as under: 15) We may now revert back to Section 158 BC(b) which is the material provision which requires our consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clarification given by CBDT in its circular No.717 dated 14th August, 1995, has a binding effect on the department, but not on the Court. This circular clarifies the requirement of law in respect of service of notice under sub-section (2) of Section 143 of the Act. Accordingly, we conclude even for the purpose of Chapter XIV-B of the Act, for the determination of undisclosed income for a block period under the provisions of Section 158 BC, the provisions of Section 142 and sub-sections (2) and (3) of Section 143 are applicable and no assessment could be made without issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that no incriminating material had been found against the respondent/assessee. (ii) In the reassessment proceedings triggered under section 147/148 of the Act, substantially the very same additions were made which were the subject matter of the first round. (iii) No fresh material was found when reassessment proceedings were triggered under section 147/148 of the Act. (iv) There is material on record, i.e., letter dated 6-9-2013, which pointed in the direction that the respondent/assessee had taken the plea that its original return should be treated as return in response to the notice issued under section 148 of the Act. (v) While according sanction, the concerned authority did not apply its mind, especially to the aspect that there was no fresh material available against the respondent/assessee while triggering the reassessment proceedings. 21. As noted above, the assessment order in the second round was passed under section 147 read with section 144 of the Act. 22. Section 144 of the Act concededly deals with the situation where inter alia, the assessee fails to file a return or fails to comply with all the terms of the notice issued under section 142 or fails to comply with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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