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2022 (7) TMI 123 - AT - Income TaxRevision u/s 263 - Period of limitation - HELD THAT:- The only material brought on record by the assessee in the instant case is as to the date of dispatch by the postal department, which, in our view, does not, for the reason of its variance with the date of the order, dislodge the statutory presumption (under the Evidence Act) of the date of it”s issue. That is, cannot be regarded as conclusive of the matter. Tribunal, as indeed any fact finding authority, has necessarily to go by the material on record, and it”s findings are to be based on relevant material (CIT v. Radha Kishan Nandlal [1975 (3) TMI 2 - SUPREME COURT], Daulat Ram Rawatmull [1972 (9) TMI 9 - SUPREME COURT], Oman Salay Mohammed Sait [1959 (3) TMI 2 - SUPREME COURT], Dhirajlal Girdhari Lal [1954 (10) TMI 8 - SUPREME COURT] - We have already indicated of a much higher workload attending the year-end, which may explain the time lag of a few days between the date of its passing and the date of its despatch, which is of a certified copy thereof, prepared by the staff. Under the circumstances, given the clear law in the matter, we do not think that it could be said that the date of issue of the impugned order/s is not the date on which the same is apparently signed, i.e., 31/3/2017. The assessee”s challenge, therefore, fails. Invalidity of the impugned orders on the basis of doctrine of merger inasmuch as the assessment sought to be revised has been subject to appellate jurisdiction in all cases, and which stands passed on 29/8/2016, i.e., prior to the issue of notice u/s. 263(1) - We have for the purpose perused the appellate orders, forming part of the paper-book in all cases, save Anuradha Upadhyay, so that the argument is not applicable in her case. The revision, in all cases, on the other hand, is on the basis that the AO has failed to, in view of the frequent transactions of purchase and sale of land during the year, as well as in the immediately preceding and succeeding year, as also the fact that the sales are to real estate developer, failed to investigate further, making proper inquiries, from the stand point that the income from these transactions is liable to be assessed as business income, i.e., as against capital gains. We fail to see as to how the doctrine of merger would operate in the instant case to oust the jurisdiction of the revisionary authority. In fact, as stated by the Pr. CIT, the Revenue has not accepted the stand of the AO, resulting in it being in appeal before the Tribunal. The assessee”s claim is untenable, and stands made only for the sake of it; the two issues being different. Sale of immovable property - The revision in the instant cases has been for the reason of lack of enquiry, i.e., as regards sale of immovable property valued at Rs. 30 lacs or more, information in respect of which came to the notice of the Revenue, while the sale value disclosed in the return filed was much lower. Or, in other cases, on account of discrepancies observed due to sale being not registered. No serious contention was in fact raised before us in this regard. That absence of proper enquiry, i.e., as warranted in the facts and circumstances of the case, would make an order erroneous inasmuch as there is no proper application of mind, is trite law. The same is among the four tests; the other three being: wrong assumption of facts; incorrect application of law; and omission to observe the principles of natural justice, laid down by the Apex Court, as in Malabar Indl. Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] The law, as amended w.e.f. 01/6/2015, statutorily deems an order made without inquiry which should have been made as liable for revision on that account. That is treats the order per se erroneous and prejudicial to the interests of the Revenue for that reason, as explained decades ago in Gee Vee Enterprises [1974 (10) TMI 29 - DELHI HIGH COURT] The plea is without merit. Revised stands passed without the issue of notice u/s. 143(2) - We are, again, unable to persuade ourselves to agree with him. Yes, an assessment u/s. 143(3) would normally arise only on the service of notice u/s. 143(2) in the matter inasmuch as the same, as explained in Asst. CIT v. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] assumes the nature of a jurisdictional notice. The decision of this aspect, i.e., if it, in the given facts and circumstances, represents a jurisdictional fact, would therefore need to be ascertained; there being “contrary” decisions as well where the Hon'ble Court have otherwise. This is in view of the words “so far as may be” occurring in s. 148(1). A non-issue or non-timely issue of a notice u/s. 143(2) may not therefore operate to disturb the jurisdiction already assumed by the AO to frame the assessment u/s. 147 upon verification of the assessee”s claims. The fact of non-issue of notice u/s. 143(2) itself is not conclusively established, i.e., as a fact, inasmuch as non-mention of issue of notice u/s. 143(2) in the order cannot by itself be regarded as conclusive of the said fact. It is only thereupon that we could proceed to examine the issue of the same resulting in an absence or otherwise of a valid assumption of jurisdiction to frame an assessment. These, it may be appreciated, are collateral proceedings. Only proved or admitted facts in the proceedings could therefore be taken into account in the instant proceedings, the scope of which cannot be extended to decide the factual or legal aspects attending the former, which has to be taken as having assumed finality. The finality of concluded proceedings cannot be lightly, if at all, disturbed. The Courts are in fact, even in the relevant proceedings, slow to adopt a construction which deprives the parties of valuable rights inasmuch as when the right of appeal is not preferred within the time prescribed therefor, the other side acquires a valuable right (refer, inter alia, Mela Ram & Sons [1956 (2) TMI 5 - SUPREME COURT]). The plea is, for the reasons afore-stated, without basis, both on facts and in law. Decided against assessee.
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