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TMI Blog2017 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer (hereinafter referred to as the "AO") has no jurisdiction to pass an order under Section 153A of Act, 1961. In taking above view Tribunal has followed its earlier judgment dated 29.05.2009 passed in ITA No. 232/Luc/2009, relating to Assessment Year 2006-07, which is the subject matter of challenge in ITA No. 168 of 2009. 2. In both these appeals three substantial questions of law have been formulated by this Court while admitting same and since they are common hence substantial questions of law formulated in ITA No. 168 of 2009 are hereby quoted as under: "I. Whether on the facts and circumstances of the case, Income Tax Appellate Tribunal was justified in dismissing appeal of Revenue by ignoring the fact that merely quoting a wrong section will not render assessment order ab initio void and that such mention of a wrong section is a defect curable u/s 292B of I.T. Act, 1961. II. Whether on the facts and circumstances of the case, Income Tax Appellate Tribunal was justified in dismissing appeal of Revenue by holding that assessment order was passed u/s 153A of Act, ignoring the fact that assessment was completed u/s 143(3)/153A after issuing notice u/s 142(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal while dismissing appeal, contained in paras 16, 17 and 18, are as under: "16. After careful consideration of rival submission and facts and circumstances of the case and various decisions including the decision referred to by the Ld. D.R., we are of the opinion that so far as the jurisdiction to proceed for making an assessment under section 153A read with section 153C is concerned, the same is quite different than the requirement of issuance of notice under Section 143(2) of the Act. The provisions of section 153A read with section 153C empower the AO to proceed with the assessment in search cases mentioned therein meaning thereby that the AO gets jurisdiction to proceed for making assessment in search cases covered by these provisions, whereas provisions of section 143(2) subject to limitation provided under proviso to the sub-section require the AO to give the assessee an opportunity to support its return, before making of assessment under section 143(3)/144 as the case may be. In other words, jurisdiction to make assessment under section 143(3) is gathered by the AO just after furnishing the return of income by the assessee under section 139 or on issuance and service of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to show year of search with respect to assessment. He further submitted that pursuant to notice issued under Section 142(1), return of income was filed by Assessee and this also shows that it was not in response to any notice under Section 153A. Mere mention of wrong provision will not make an order invalid and for this purpose reliance is placed on this Court's judgment in The Commissioner of Income Tax vs. U.P. State Food and Essential Commodities Corporation Ltd., 2006(285) ITR 151 (All). 8. In the connected ITA No. 169 of 2008 all the facts otherwise are similar except that it relates to Assessee, Sri Siraj Iqbal at whose premises search and seizure operation was conducted under Section 132 on 10.11.2005. Assessee was served with a notice under Section 153A on 23.10.2007 calling for return of income. Assessee failed to file any return of income. Thereafter a detailed questionnaire dated 12.11.2007 in the form of notice under Section 142(1) was served upon him on 13.11.2007 fixing 23.11.2007 as date of compliance. Assessee failed to submit reply hence was served with another notice under Section 142(1) calling for various details in respect of shopping cum residential com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Notice u/s 153A was issued on the appellant on 23.10.2007. (v) Return in response to notice u/s 153A was finalized on 27.12.2007. (vi) No notice u/s 143(2) was issued and served on the assessee. (vii) Assessment order u/s 153A/143(3) passed on 27.12.2007." 11. Section 153A which is part of Chapter XIV which deals with "Procedure for Assessment", came on statute book as inserted by Finance Act, 2003 w.e.f. 01.06.2003. In respect of period of assessment, Section 153A, as it was, read as under: "153A. Assessment in case of search or requisition.- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall-- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling within six assessment years. 13. Section 142 lays down procedure with regard to inquiry before assessment. Notice under Section 142(1) may be issued by AO for the purposes of making assessment who has made a return under Sections 139 or 115WD or in whose case time allowed under Section 139(1) for furnishing return has expired. Section 142(2) provides that AO for the purpose of obtaining full information in respect of income or loss of any person, may make such inquiry as he considers necessary. Sub-section (3) of Section 142 says that except where assessment is made under Section 144, Assessee shall be given an opportunity of being heard in respect of any material gathered on the basis of any inquiry under sub-section (2) or any audit under sub-section (2A) and proposed to be utilized for the purposes of assessment. 14. Section 143 talks of assessment and for our purposes relevant sub-section (1), (2) and (3), as the same existed for the purpose of assessment of relevant assessment year, read as under: 143. Assessment.- (1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a). (1A) For the purposes of processing of returns under sub-section (1), the Board may make a scheme for centralised processing of returns with a view to expeditiously determining the tax payable by, or the refund due to, the assessee as required under the said sub-section. (1B) Save as otherwise expressly provided, for the purpose of giving effect to the scheme made under sub-section (1A), the Central Government may, by notification in the Official Gazette, direct that any of the provisions of this Act relating to processing of returns shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in that notification; so, however, that no direction shall be issued after the 31st day of March, 2012. (1C) Every notification issued under sub-section (1B), along with the scheme made under sub-section (1A), shall, as soon as may be after the notification is issued, be laid before each House of Parliament. (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,-- (i) where he has reason to believe that any claim of loss, exemption, deduction, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (23B) of section 10; (e) fund or institution referred to in sub-clause (iv) or trust or institution referred to in sub-clause (v) or any university or other educational institution referred to in sub-clause (vi) or any hospital or other medical institution referred to in sub-clause (via) of clause (23C) of section 10, which is required to furnish the return of income under sub-section (4C) of section 139, no order making an assessment of the total income or loss of such research association, news agency, association or institution or fund or trust or university or other educational institution or any hospital or other medical institution, shall be made by the Assessing Officer, without giving effect to the provisions of section 10, unless-- (i) the Assessing Officer has intimated the Central Government or the prescribed authority the contravention of the provisions of clause (21) or clause (22B) or clause (23A) or clause (23B) or sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10, as the case may be, by such research association, news agency, association or institution or fund or trust or university or other educational inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer has to complete the assessment under section 143(3) only. In case of default in not filing the return or not complying with the notice under section 143(2)/142, the Assessing Officer is authorized to complete the assessment ex parte under section 144. Clause (b) of section 158BC by referring to section 143(2) and (3) would appear to imply that the provisions of section 143(1) are excluded. But section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under section 143(2). However, if an assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, requirement of notice under section 143(2) cannot be dispensed with." (emphasis added) 17. Similar view was taken in Commissioner of Income Tax vs. Rajeev Sharma, 2011(336) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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