2025 (7) TMI 445 - HC - Income Tax

Validity of assessment framed u/s 143(3) - as alleged mandatory Notice u/s 143(2) (ii) was not served upon the assessee before the expiry of twelve months from the end of the month in which the return is furnished - HELD THAT - It is mentioned in order dated 03.05.2002 passed by Commissioner Income Tax (Amritsar) that questionnaire was issued on 09.04.1999 and served on assessee on 22.04.1999 and case fixed before AO for the first time on 29.04.1999. When read with observation in assessment order dated 27.08.1999 as reproduced above it is apparent that notice u/s 143(2) of IT Act was not issued/served before the stipulated date. Apart from the specific mandate in the Act itself this issue stands authoritatively decided by Hon ble the Supreme Court in Assistant Commissioner of Income Tax and another Vs. Hotel Blue Moon 2010 (2) TMI 1 - SUPREME COURT Learned counsel for the respondent is unable to deny the same. Argument raised by respondent that question of law as raised should not be permitted at this stage is devoid of merit hence rejected. It is to be noted that at the time of admission of appeal no specific substantial questions of law were framed with the appeal simply being admitted. It is a settled position that while adjudicating an appeal under Section 260-A(4) of the IT Act this Court has the power to frame substantial questions of law. At the time of hearing any question other than the one on which the appeal may have been admitted can be framed subject to satisfaction that the appeal does involve such question. Gainful reference in this respect can be made to judgment of Mastek Limited 2013 (3) TMI 309 - SUPREME COURT Question of law as raised is decided in favour of assessee.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

• Whether the assessment framed under Section 143(3) of the Income Tax Act, 1961 is liable to be quashed on the ground that the mandatory notice under Section 143(2) was not served upon the assessee within the prescribed time limit of twelve months from the end of the month in which the return was furnished;
• Whether the question regarding the validity and timing of the notice under Section 143(2) can be raised at the appellate stage, despite not having been raised before the Assessing Officer, Commissioner of Income Tax (Appeals), or the Income Tax Appellate Tribunal;
• Whether the absence of relevant assessment records with the department affects the determination of the timing and service of the notice under Section 143(2) and the consequent validity of the assessment proceedings.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of assessment framed under Section 143(3) in absence of timely notice under Section 143(2)

Relevant legal framework and precedents: Section 143(2) of the Income Tax Act, 1961 mandates that a notice for scrutiny assessment must be served within twelve months from the end of the month in which the return is furnished. The proviso to Section 143(2) explicitly prohibits issuance of notice beyond this period. The Supreme Court's ruling in Assistant Commissioner of Income Tax Vs. Hotel Blue Moon (2010) 321 ITR 362 (SC) holds that failure to issue notice within the prescribed period renders the assessment proceedings void and unsustainable.

Court's interpretation and reasoning: The Court examined the timeline: the return was filed on 21.10.1997, hence the last permissible date for notice under Section 143(2) was 31.10.1998. The department conceded that relevant records were not traceable, but the assessment order dated 27.08.1999 indicated notices under Section 143(1) and 143(2) were issued only after 31.10.1998. The Commissioner's order confirmed that the questionnaire was issued on 09.04.1999 and served on 22.04.1999, well beyond the statutory period.

Key evidence and findings: The assessment order and appellate order records were relied upon to establish the date of issuance and service of the notice under Section 143(2). The absence of departmental records was supplemented by admissions in the affidavit and the language of the assessment order itself.

Application of law to facts: Given the statutory limitation and the admitted delay in issuance of the notice, the Court found the assessment proceedings to be invalid. The Court emphasized that the statutory time-limit is mandatory and not directory, and failure to comply vitiates the entire assessment.

Treatment of competing arguments: The department argued that the question of timing was not raised earlier and that the assessment and appellate orders were correct. The Court rejected this, holding that the issue goes to the root of jurisdiction and can be raised at any stage. The department's inability to produce records did not absolve it from compliance with the statutory mandate.

Conclusion: The assessment framed under Section 143(3) was quashed for failure to serve the mandatory notice under Section 143(2) within the prescribed time limit.

Issue 2: Permissibility of raising the question of notice validity at appellate stage

Relevant legal framework and precedents: Section 260-A(4) of the Income Tax Act empowers the High Court to frame substantial questions of law even if not specifically framed at the time of admission of the appeal. The Supreme Court in Commissioner of Income Tax Vs. Mastek Limited (2013) 358 ITR 252 (SC) clarified that the Court can frame questions of law at the hearing stage if the appeal involves such questions.

Court's interpretation and reasoning: The Court noted that the question regarding the validity of the notice under Section 143(2) was not raised before the lower authorities but was raised before this Court as an additional substantial question of law. The Court held that this question is fundamental and goes to the root of the matter, hence it is permissible to raise it at this stage.

Key evidence and findings: The Court relied on the procedural history and the absence of framing of substantial questions of law at admission, and the settled legal position permitting framing of such questions at hearing.

Application of law to facts: The Court applied the principle that jurisdictional and fundamental questions can be raised at any stage, especially when they affect the validity of the proceedings.

Treatment of competing arguments: The department's objection to the late raising of this question was rejected as lacking merit.

Conclusion: The question regarding the validity and timing of the notice under Section 143(2) was rightly entertained by the Court at the appellate stage.

Issue 3: Effect of absence of relevant assessment records on determination of notice service and assessment validity

Relevant legal framework and precedents: The Supreme Court in CIT Vs. Durga Parsad More (82 ITR 540) held that in absence of direct records, the Court may consider surrounding and peripheral circumstances to ascertain facts.

Court's interpretation and reasoning: The Court considered the affidavit filed by the department admitting non-availability of records and accepted that the surrounding circumstances, including the assessment order and appellate order, could be examined to determine the timing of notice service.

Key evidence and findings: The assessment and appellate orders themselves mentioned dates and events indicating late issuance of notice.

Application of law to facts: The Court applied the principle that absence of records does not prevent judicial scrutiny and that other documentary evidence can be used to determine compliance with statutory requirements.

Treatment of competing arguments: The department's inability to produce records was not accepted as a defense to the statutory non-compliance.

Conclusion: The Court relied on the available records and peripheral circumstances to conclude that the notice under Section 143(2) was issued beyond the statutory period, rendering the assessment invalid.

3. SIGNIFICANT HOLDINGS

The Court held:

"It is a matter of record and admitted that return was filed by appellant on 21.10.1997. Therefore, the last date before notice under Section 143(2) of the IT Act could be issued was 31.10.1998."

"Concededly, relevant record is not available with the department. Assessment order dated 27.08.1999 has been perused. It is specifically stated therein that; 'Assessee filed return of income on 21.10.1997 declaring income of Rs. 3,02,500/ -. Case of the assessee firm was selected under random scrutiny. Detailed questionnaire along with notices under Section 143(1) & 143(2) were issued.'"

"It is apparent that notice under Section 143(2) of IT Act was not issued/served before the stipulated date. Apart from the specific mandate in the Act itself, this issue stands authoritatively decided by Hon'ble the Supreme Court in Assistant Commissioner of Income Tax and another Vs. Hotel Blue Moon."

"Argument raised by learned counsel for the respondent that question of law as raised should not be permitted, at this stage, is devoid of merit, hence rejected."

"Keeping in view the facts and circumstances as above, said question of law as detailed in para-4 of this order is answered in favour of the assessee and against the department."

The Court established the core principle that the statutory time-limit for issuance of notice under Section 143(2) is mandatory and non-compliance renders the assessment proceedings void. It affirmed the power of the High Court to frame substantial questions of law at the hearing stage, especially when such questions affect jurisdiction. The Court also held that absence of departmental records does not preclude judicial inquiry into compliance with statutory mandates, and peripheral evidence can be relied upon.

Consequently, the impugned order of the Income Tax Appellate Tribunal was set aside, and the assessment order and appellate order were quashed, allowing the appeal.