TMI Blog2015 (1) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it cannot be cured by relying upon any other section, because such a mistake is not a clerical mistake-it relates to jurisdiction. The ‘mistake/defect or omission’ in notices issued by the AO u/s.148 instead of section 153A is not ‘in conformity with /according’ to the intent and purpose of the Act. Jurisdictional issues cannot fall in the category of clerical mistakes-they go the roots of the assessment. Orders passed by the AO for the AY.1999-2000,2001-01,2001-02 are not valid. As far as the assessment of AY.2004-05 it is found that the AO had issued notice u/s.143(2) and before completing the original assessment had issue a notice u/s.148 of the Act. We cannot comprehend as how can an AO issue a notice for reassessing escaped income during the pendency of the assessment itself. The chronological events discussed in earlier clearly show that the AO had issued notice u/s.148 for that year on 20.02.2006 and the assessment was completed on 29.12.2006.Besides he has issued notice u/s.143(2)on 17.2.2005. The assessment order for the AY.2004-05 was invalid. - ITA Nos.1485-88/Mum/2008, C.O.Nos.15-18/Mum/2012, .ITA No.2968/Mum/2011 - - - Dated:- 9-1-2015 - S/Sh. D. Manmohan, Vic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood in the name of appellants daughter Ms. Sap V. Adnani was produced before the Assessing Officer and the C.I.T.(A). vii)The appellant craves leave to add, alter, amend or delete any ground(s) of appeal either before or during the course of hearing of the appeal. ITA Nos.1487 1488/Mum/2008-AY.-: i) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in rejecting the appellants ground that the assessment has been passed without giving an opportunity of being heard by ignoring the facts stated in the statement of facts. ii) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the not ices U/s . 148 as well as 142(1) were properly served on the appellant and thereby erred in confirming the additions which were made without giving property opportunity of being heard. iii)On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the status of the appellant as Resident when in fact the appellant had returned the income in the status of Non Resident and that no evidence was brought record by the Assessing Officer that the appellant was a Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, ought to have considered the evidence produced in the course of the penalty proceedings before the Assessing Officer as well as before the C.l.T.(A). iv)The appellant craves leave to add, alter, amend or delete any ground(s) of appeal either before or during the course of hearing of the appeal. The assessee has also raised Additional Grounds of appeal for all the AY.s. Additional grounds except for the AY.2004-5 i.e. for AY.s.1999-2000, 2000-01,2001-02 read as under: 1.On the facts and circumstances of the case and in law, the reopening of the assessment by issue of notice u/s. 148 dated 20/21/2006 is bad in law that the said notice is issued without the sanction of CIT/CCIT u/s. 151 of I T Act 1961 as a notice is issued beyond four years. 2.On the facts and circumstances of the case and in law, the learned A. O. had no information about escapement of any income for the year under appeal as the intimation from DDI Investigation pertains to the period 23/21/2002 to 30/06/2004 and therefore erred 'in issuing notice u/s. 148 and that too without sanction u/s. 151 of I T. Act 1961. For AY. 2000-01 the same above two grounds were taken, however for AY.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. Thus, assessment made in case of abovementioned assessee needs to be seen in the light of provisions of section 292B. In this regard, an approval is obtained by the CIT-19,Mumbai vide his approval letter no. CIT-19/Cross. Obj./Vashdev Adnani/2011-12 dated 07-04-2011. . As there was delay of 1827 days in filing the CO.s.,so the AO moved an application to condon the delay. In his letter, dated 08.02.2012,he has mentioned as under: In this case, the assessee has raised an additional ground of appeal before the Hon'ble ITAT challenging the issue of notice u/s 148 for AY 1999-2000, 2000- 01, 2001-02 and completion of assessment u/s 147 without disposing the original return for AY 2004-05. 3.Vide letter N0.Addl.CIT/ITAT-V/'F' Bench/2010-11 dated 23-02-2011, the SR. AR, ITAT-F Bench, Mumbai has requested to Addl. CIT Rg.19(1), Mumbai to file cross objection on the additional ground raised by the assessee before the Hon'ble ITAT challenging the issue of notice u/s 148 for AY 1999-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for issuing notice u/s.153A of the Act, that issuing of notices under section 148 for AY. 1999-2000 to 2004-05 by the AO was an inadvertent mistake, that notices u/s. 153A should have been issued for AY.1999-2000 to 2004-05 and not under section 148,that not mentioning section 153A in the body of the order shall not render assessments invalid in view of section 292B of the Act. The grounds of appeal and the Additional Grounds of appeal filed by the assessee deal with merits of the case as well as the jurisdiction. The assessee has raised objections about the validity of the assessments passed by the AO for all the four AY.s. We are of the opinion that the question of jurisdiction has to be decided first before dealing with merits of the appeal. 2.First of all, we would like to consider the basic data about the assessee for all the four AY.s. AY. Return filed on Returned Income Assessment-date Assessed Income 1999-00 15.12.2006 86,887/- 29.12.2006 5,38,642/- 2000-01 15.12.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 292B of the Act. 4.Considering the above, we are of the opinion that one of the issues for determination is whether the present proceedings which were taken in pursuance of notice u/s.148 dated 20.02.2006 for AY.s.1999-2000,2000-01,2001-02 2004-05 can be treated as proceedings u/s. 153A of the Act and accordingly can be rectified u/s. 292B of the Act, as stated in the Cross objections of the AO filed on 01.12.2008.Second issue is whether the re-assessment proceedings initiated by the AO were valid ? One of the questions for the AY. 2005-05 is again the validity of the assessment. In that matter the AO had issued the Notice u/s.147 during the pendency of the assessment proceedings, though a Notice u/s.143(2) of the Act was issued by the AO in pursuance of the valid return filed by the assessee on 30/10/2004. 4.1.We have heard the rival submissions and perused the material available on record. We find that the AO, vide his cross objections dated 01.12.2012,has argued that the assessments completed u/s.148 should be treated as assessment finalised u/s.153A of the Act. It clearly indicates that an action 132/132A was taken in the case under consideration. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 132 or section 132A any assessment or reassessment proceeding is initiated relating to any assessment year falling within the period of six assessment years, it shall stand abated and the assessing authority cannot and shall not proceed with such pending assessment after initiation of search or requisition. The word abatement means the act of eliminating or nullifying or suspension or defeat of a pending action. Hon ble Delhi High Court in the case of Saraya Industries Ltd. has (306ITR189)incorporated some more principles related with the section in following manner: The opening portion of section 153A of the Income-tax Act, 1961, makes it clear that it applies to a person in respect of whom a search is initiated under section 132 of the Act, or whose books of account, other documents or any assets are requisitioned under section 132A after May 31, 2003. Section 153C of the Act is with reference to a person in respect of whom any money, bullion, jewellery or other valuable articles or things or books of account or documents seized or requisitioned belong. The persons mentioned in section 153A of the Act are specifically excluded from section 153C of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) In all other cases and for all other assessment years section 148 can always be resorted to subject of course to the condition that it must satisfy the requirement specified in section 148. 4.3.Now,we would take up the issue as to whether the provisions of section 292 B can be invoked for treating the re-assessment proceedings as proceedings u/s.153A of the Act,as argued by the Revenue. Section 292B of the Act, which says that no return of income furnished under the Act shall be invalid merely by reason of any mistake, defect or omission in such return of income, if it, in substance and effect, is in conformity with or according to the intent and purpose of the Act, was introduced into the Act with effect from 01.10.1975.In the statement of objects and reasons, published in the Gazette dated 09.05 1973,for Bill No.34 of 1973-89 ITR(St.)33),it is stated, at clause 80, referring to section 292B,that it seeks to provide against purely technical objections without substance coming in the way of the validity of assessment proceedings, etc. In the Departmental Circular No. 179dated 30.09. 1975-102ITR(St.)28), explaining the scope of section 292B, it is stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the computation of tax made on separate sheet of paper is not signed by him, the assessment cannot be held invalid. In such cases, courts are of the views that it is not a case of non-compliance with mandatory provision. Such an assessment cannot be held invalid because of the existing provisions of section 292B of the Act. vi.)A Composite notice asking an assessee to pay balance advance tax and stating that on failure to pay assessee to show cause why penalty should not be levied it has been held valid having regard to the purport of the notice and the provisions of section 292B . vii.)Converting the proceeding under section 147(b) into a proceeding under section 147(a) of the Act, is invalid. It is said that Section 292B does not empower the AO to treat a proceeding taken under one section as a proceeding under another section, that it is not a mere technicality , but, was a question of jurisdiction . viii.) In case of an Association of persons if a notice for not furnishing return of income is issued to an individual without specifying whether it was issued to principal officer or member of AOP, then the AO is not competent to re-assess the income of the AOP cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment if a notice is issued under section 158BC r.w.s.158BD of the Act and the AO fails to mention Sec. 158BD in the notice, it is not considered fatal. It is said that the defect in mentioning a particular section is curable under section 292B and consequent block assessment order is considered within jurisdiction. xvi.)After insertion of section 292 B of the Act, an appeal cannot be dismissed due to defect in memorandum, because it is only a technical defect and can be cured. xvii.)Penalty proceedings cannot be held invalid because the AO had not struck off the column for which the assessee was not required to give reply. xviii.)If a return of company is not signed by managing director but by a person authorised by board resolution the defect in signing the return is curable under section 292B. xix.)Under section 151 of the Act, it is only the Joint Commissioner or Additional Commissioner, who could grant the approval for issue of notice u/s.148 and in such cases if the approval is granted by the Commissioner it is not an irregularity that is curable by section 292B.Courts have held that such notices are invalid. xx.)General mistakes in filing return are protecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduced various section to regulate the tax collection. So, to assume that one section is re-placable by another is not a logical or legal conclusion. Each section, each phrase and each word of the Act has its own place and importance. If an AO commits a mistake while passing assessment orders, it cannot be cured by relying upon any other section, because such a mistake is not a clerical mistake-it relates to jurisdiction. The mistake/defect or omission in notices issued by the AO u/s.148 instead of section 153A of the Act is not in conformity with /according to the intent and purpose of the Act. Jurisdictional issues cannot fall in the category of clerical mistakes-they go the roots of the assessment. In these circumstances, we are of the opinion that orders passed by the AO for the AY.1999-2000,2001-01,2001-02 are not valid. As far as the assessment of AY.2004-05 is concerned, it is found that the AO had issued notice u/s.143(2) of the Act and before completing the original assessment had issue a notice u/s.148 of the Act. We cannot comprehend as how can an AO issue a notice for reassessing escaped income during the pendency of the assessment itself. The chronological ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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