TMI Blog2018 (5) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. We conclude in view of these facts that the CIT’s said observation is against the assessment records. Mere on non production of the notice(s) in question; in our considered view, is not sufficient to conclude that the Assessing Officer had not issued sec. 143(2) and sec. 142(1) notices which is view of the above overwhelming supportive evidence in the nature of assessment proceedings before us. We quote sec. 136 of the Act to conclude that the legislature has indeed treated proceedings before us Income Tax authorities to be judicial proceedings as well. - ITA No.1214/Kol/2013 - - - Dated:- 11-5-2018 - Shri S. S. Godara, Judicial Member And Dr. A.L. Saini, Accountant Member For The Appellant : Shri S.M. Surana, Advocate For The Respondent : Md. Usman, CIT-DR ORDER PER S.S.Godara, Judicial Member:- This assessee s appeal for assessment year 2008-09, is directed against the Commissioner of Income Tax-I, Kolkata s order dated 04.03.2013, revising the re-assessment in question dated 28.12.2010 thereby terming the same to be erroneous causing prejudice to the interest of the Revenue, exercising revision jurisdiction lis proceedings u/s 263 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was nothing on record that no enquiry was made with regard to the identity and creditworthiness of the shareholders when all the shareholders were assessed to tax, their PAN were submitted and there was nothing on record to doubt the identity and creditworthiness of the said applicants. 12) For that the Ld. CIT erred in applying the provisions of sec. 263 by holding the view that the AO did not pursue the enquiry to their logical end and as such on that ground alone the order was erroneous and prejudicial to the interest of Revenue when in fact no other reason was found to consider the order as erroneous and prejudicial to the interest of revenue. 13) For that the direction of the Ld. CIT to the AO to verify various layers is bad in law since the AO has no power to seek details of source of source since the assessee has nothing to do with the source of source. 14) For that on the facts and circumstances of the case the order of the CIT be modified and the assessee be given the relief prayed for. 15) For that the assessee craves leave to add, alter or amend any ground before or at the time of hearing. 3. It transpires from the case records that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order ; iv) The order of the CIT is not based on irrelevant considerations and further in the present circumstances, he was not obliged to positively indicate the deficiencies in the assessment order on merits on the question of issue of share capital at a huge premium; and v) the AO in the given circumstances can't be said to have taken a possible view as the revision is sought to be done on the premise that the AO did not make enquiry thereby rendering the assessment order erroneous and prejudicial to the interest of the revenue on that score itself. C. In the given facts and circumstances of all such cases, the notices u/s 263 were properly served through affixture or otherwise. Further the law does not require the service of notice u/s 263 strictly as per the terms of section 282 of the Act. The only requirement enshrined in the provision is to give an opportunity of hearing to the assessee, which has been complied with in all such cases. D. Limitation period for passing order is to be counted from the date of passing the order u/s 147 read with sec. 143(3) and not the date of Intimation issued u/s 143(1) of the Act, which is not an order for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive ground that once the CIT s order passed u/s. 263 of the Act had recorded a categories finding that the Assessing Officer had not issued any notice u/s. 143(2) or 142(1) of the Act during the course of re-assessment, the re-assessment itself forming subject-matter of revision proceedings is null and void which could not have been set aside in revision jurisdiction under challenge. Learned co-ordinate s order dated 01.12.2017 accepted assessee s said rectification plea in its order dated 01.12.2017.It is in the above backdrop of facts that instant lis has come up before us in this second ground of adjudication. 6. Learned counsel representing assessee first of all takes us to the CIT s order dated 04.03.2013 under challenge. He invites our attention to CIT s finding in first line of page 2 that Even the statutory notices u/s. 143(2) and 142(1) were not issued by the AO before completion of assessment . Learned counsel s argument therefore is that once the Assessing Officer had not issued any such notice before finalizing the re-assessment in question, the CIT has erred in law as well as on facts in subjecting the said re-assessment to his revision proceedings u/s. 263 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l s attention to the fact that the same auditor had represented the assessee even in section 263 as well as consequential assessment framed on 26.07.2014. Mr. Surana reiterates that once the original assessment / reassessment is non est, the above auditor s subsequent act and conduct or that of the assessee itself cannot validate the same as held in hon'ble apex court s decision (supra). He therefore prays that the impugned re-assessment framed on 28.12.2010 is to be held non est, null and void at the threshold itself and therefore, there is no scope for the CIT to exercise his jurisdiction vested u/s. 263 of the Act. 10. Mr. Usman (CIT DR) represents the Revenue. He first of all informs us that the assessment record in Xerox is available with him. He submits during the course of hearing that since the assessing officer had not made proper enquiries during the course of re-assessment, the CIT has rightly initiated the impugned proceedings as upheld upto the apex court. There is no scope left therefore in the instant second round once the tribunal s order upholding the section 263 proceedings of the Act is affirmed upto hon'ble apex court. He pleads that it would be an an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confined to assessee s third substantive ground that the CIT could not have revised the re-assessment in question framed on 28.12.2010 since the latter one is a non est order in the eyes of law not exigible to revision. We quote all the relevant case law relied upon at the assessee s behest (supra) to observe first of all that it is very much open for the assessee to challenge validity of the re-assessment in section 263 proceedings on the ground that same are non est in the eyes of law. Co-ordinate bench s decision(s) (supra) have already concluded that assessment proceedings are primary proceedings whereas those u/s 263 of the Act are in the nature of collateral proceedings. The question before us in this backdrop of facts is as to whether the Assessing Officer can be held to have issued notices u/s 143(2) or 142(1) of the Act or not. In case the reply is in negative, it would render the entire re-assessment bad in the eyes of law as per hon'ble apex court s decision in Hotel Blue Moon (supra) followed in this tribunal s coordinate bench s order. We now revert back to the relevant facts of the case. It emerges from the case records that the Assessing Officer had initiated t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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