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TMI Blog2018 (5) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued by the Assessing Officer as such the assessment order itself was null and void and therefore the same cannot be set aside u/s. 263. 4) For that there was no valid service of notice u/s. 263 as the same is stated to be served through affixation whereas even the order u/s. 263 sent through speed post was duly served upon the assessee. 5) For that Ld. CIT erred in stating that Notice u/s. 263 of the IT Act was issued for the said reason (i.e reason stated in para 5 of the order u/s. 263) on 21.12.2012, whereas the said notice did not contain any reasons for initiating proceedings u/s 263. Since the notice did not contain any reason, the proceedings u/s. 263 is bad in law. 6) For that the Ld. CIT erred in not considering the written submission of the assessee sent through speed post asking for reason for initiation of proceeding u/s. 263, which demonstrate that the Ld. CIT was predetermined to set aside the assessment order, hence the entire proceedings u/s. 263 are bad in law. 7) For that the Ld. CIT erred in not considering the reply filed by the assessee in response to notice u/s. 264 dated 21.12.2012. 8) For that no notice dated 15.01.2013 issue by the Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Id. ARs were given opportunity to argue their-matters to full extent. Some of the Id. ARs argued the matter on merits and all other ARs including Sh.S.M.Surana, Advocate, who is the Id. AR in this batch of appeals, admitted that facts and circumstances of all the cases were mutatis mutandis similar to those argued. Thereafter, the remaining case specific issues were argued by all the Id. ARs, pertaining to their respective cases. We have passed a separate lead order in the case of M/s Subhlakshmi Vanijya Pvt. Ltd., vs. ClT (ITA No. 1104/Kol/2014 A.Y. 2009-10) also covering other eighteen cases dealing with all the issues raised before us in more than 400 appeals, including the instant batch, for which we are passing separate orders. Following conclusions have been drawn in the lead order: - A. Contention of the assessee that since the AO of the assessee- company was not empowered to examine or make any addition on account of receipt of share capital with or without premium before amendment to section 68 by the Finance Act, 2012 w.e.f A.Y. 2013-14 and hence the CIT by means of impugned order u/s 263 could not have directed the AO to do so, is unsustainable. B. Failure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defraud the Revenue by either: filing returns, after amalgamation, in the old name or otherwise, then the order passed in the old name is valid. H. Order passed u/s 263 on a non-working day does not become invalid, when the proceedings involving the participation of the assessee were completed on an earlier working day. I. Order u/s 263 cannot be declared as a nullity for the notice having not been signed by the CIT, when opportunity of hearing was otherwise given by the CIT, J. Refusal by the Revenue to accept the written submissions of the assessee sent after the conclusion of hearing cannot render the order void ab initio. At any rate, it is an irregularity. K. Search proceedings -do not debar the CIT from revising order u/s passed u/s 147 of the Act. - 5. It is noticed that all or some of the above conclusions drawn are applicable to the appeals in this batch. Following the view taken in the lead orders, we uphold all the impugned orders. 6. In the result all the appeals are dismissed. 4. There is no dispute that one of the said assessee(s) filed appeal Rajmandir Estates Private vs. Principal Commissioner of Income preferred with ITA No.113/Kol/2016 before ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wherein validity of the former can always be challenged. This tribunal's decision in M/s Westlife Development Ltd. vs. Principal CIT in ITA No. 686/Mum/2016 places reliance upon hon'ble apex court's judgment in Kiran Singh & Ors. vs. Chaman Paswan & Ors.(1955) 1 SCR 117 (SC). Their lordships are of the view that a decree passed by a court without jurisdiction is a nullity which could be put to challenge in execution or in collateral proceedings. Their lordships conclude that any defect of jurisdiction in pecuniary or territorial or in respect of subject-matter of the action strikes at the very authority of the court to pass any decree and the same would not curable even by consent of the parties. Mr. Surana takes pains to enlighten us that hon'ble Rajasthan high court's judgment in Decp chand Kothari vs. CIT (1988) 179 ITR 381 (Raj) adopts the very reasoning in civil jurisprudence to income tax proceedings as well. 8. Learned counsel next relies upon this tribunals co-ordinate bench decision in Dr. SB Kalidhar vs. ITO Ward-4 in ITA No.1082/Del/2016 decided on 27.11.2017. Learned co-ordinate bench there is annuls similar assessment / re-assessment on the ground that non i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question takes advantage of the CIT above crucial observation (supra) going against the assessment records. He pleads that the same are not binding on the Revenue since they are neither appealable nor rectifiable at its behest. He further invites our attention to the CIT's notice(s) initiating section 263 proceedings dated 21.12.2011 and 15.01.2013, as well as assessee's reply thereto on the latter date to the effect that it had filed all the relevant details and documents as called during the assessment from time to time. The assessee had asserted as per its reply that all of its books of account, bills, vouchers and other supporting documents had also been called by the Assessing Officer for examination as produced in the course of scrutiny followed by independent verification through notice / summons issued u/s 133(6) / 131 of the Act. Learned DR further submits in the end that the re-assessment in question is neither non est nor void so as not to be revised in u/s 263 jurisdiction vested with the CIT. We posed a specific query to the Revenue as to whether the assessment records comprise of the relevant notices issued u/s 143(2) or u/s. 142 142(1) or not. The reply received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial act of completing re-assessment in assessee's case as per the prescribed procedure. We reiterate that although assessee has pleaded of neither it itself nor its authorized representative to have appeared during the course of scrutiny in furtherance to the said notice(s), the above narrated 'facts speak otherwise wherein it had not even filed its authorized representative affidavit to rebut the above assessment notice(s). The very auditor had been continuing to represent the assessee's right from reassessment to section 263 proceedings as well as the consequential assessment framed on 26.07.2014. We take note of the assessee's reply filed before the CIT (supra) as well defending the above assessment to have been completed after calling necessary books, bills, vouchers as well as supporting documents for examination as produced at its behest followed by notice / summons issued u/s. 133(6) and 131 of the Act; respectively. We are of the view in these facts that the assessee could not have placed on record the required documents within any notice at all before section 133(6)/131 process. The assessee's instant substantive ground therefore appears to be as well worded one wherein i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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