TMI Blog2022 (7) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under the circumstances, given the clear law in the matter, we do not think that it could be said that the date of issue of the impugned order/s is not the date on which the same is apparently signed, i.e., 31/3/2017. The assessee s challenge, therefore, fails. Invalidity of the impugned orders on the basis of doctrine of merger inasmuch as the assessment sought to be revised has been subject to appellate jurisdiction in all cases, and which stands passed on 29/8/2016, i.e., prior to the issue of notice u/s. 263(1) - We have for the purpose perused the appellate orders, forming part of the paper-book in all cases, save Anuradha Upadhyay, so that the argument is not applicable in her case. The revision, in all cases, on the other hand, is on the basis that the AO has failed to, in view of the frequent transactions of purchase and sale of land during the year, as well as in the immediately preceding and succeeding year, as also the fact that the sales are to real estate developer, failed to investigate further, making proper inquiries, from the stand point that the income from these transactions is liable to be assessed as business income, i.e., as against capital gains. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A non-issue or non-timely issue of a notice u/s. 143(2) may not therefore operate to disturb the jurisdiction already assumed by the AO to frame the assessment u/s. 147 upon verification of the assessee s claims. The fact of non-issue of notice u/s. 143(2) itself is not conclusively established, i.e., as a fact, inasmuch as non-mention of issue of notice u/s. 143(2) in the order cannot by itself be regarded as conclusive of the said fact. It is only thereupon that we could proceed to examine the issue of the same resulting in an absence or otherwise of a valid assumption of jurisdiction to frame an assessment. These, it may be appreciated, are collateral proceedings. Only proved or admitted facts in the proceedings could therefore be taken into account in the instant proceedings, the scope of which cannot be extended to decide the factual or legal aspects attending the former, which has to be taken as having assumed finality. The finality of concluded proceedings cannot be lightly, if at all, disturbed. The Courts are in fact, even in the relevant proceedings, slow to adopt a construction which deprives the parties of valuable rights inasmuch as when the right of appeal is not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.03.2015 is not erroneous so far as prejudicial to the interest of revenue hence the revision order dated 31.03.2017 is bad in law. 7. The revision order dated 31.03.2017 is bad in law for other reasons also hence may kindly be cancelled. 3.1 Per the Ground 1, as argued, the assessee challenges the impugned order on the ground that the impugned revision order/s, in each case, dated 31/3/2017, i.e., the last day of the relevant previous year, i.e., the last date of limitation u/s. 263(2), which reads as under, is bad in law inasmuch as they were all dispatched only 07 days later, i.e., as on April 7, next following:- Revision of orders prejudicial to revenue. 263(1) x x x x x x x x x x (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Copy of the postal receipt and the tracking report reflecting the date of dispatch of the corresponding consignment, are placed on record to exhibit the same. On its basis, it is stated that the said orders, though dated March 31 of the relevant year, were released and went out of control of the authority making th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er/s in the instant case/s stands issued, a matter of fact . Toward this, while the assessee relies on the date of dispatch, the Revenue does on the date of the order, and on which it was signed or, at worst, apparently so. The onus of proving that the apparent was not real is on the party who claims it to be so, is trite law ( CIT v. Daulat Ram Rawatmull [1972] 87 ITR 349 (SC), and remains completely undischarged in the instant case. There is nothing on record to show that the orders were either not signed on the 31st day of March, 2017, i.e., the date subscribed on the order/s, or even if signed on that date, was not released by the authority signing the order, but actually retained by it, so that, suggesting so, as the assessee does, would be presumptuous. The presumption in law rather is that all the official and judicial acts or regularly performed (sec. 114(e) of the Indian Evidence Act, 1872). There could be several steps or reasons for the delay in dispatching the orders under reference. Our concern, however, is not the date of despatch per se , but that of it s signing and, upon it, being handed over to the secretarial staff for follow-up measures, viz. making correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on passing the same. The said decision thus clarifies that the word issue cannot be understood or extended to the incident of either receipt (by the person to whom it is issued) or despatch (by the person issuing the order). It is easy to see that the matter is purely factual and, to our mind, that is precisely the legal issue or the ratio decidendi of the said decision, and for which reliance is placed on the decision in The Mavilayi Service Coop. Bank Ltd. v. CIT [2021] 431 ITR 1 (SC). In other words, it being a matter of fact, would have to be necessarily decided by issuing a finding of fact, and not be applying any legal notion, i.e., in the absence of any legal fiction or anything in the clear language of law to so suggest. This in fact is also the premise of the decision in Bhagwan Das Oil Mills vs. CCIT 2016 (28) STG 620 (MP). Copy of this order we find as placed on file by the Revenue on 07/03/2018, i.e., on an earlier occasion. Though not referred to during hearing, being by the Hon'ble jurisdictional High Court, it becomes incumbent on us to take note and accord due deference thereto, allowing though opportunity of being heard to the opposite side where so dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that the Assessing Officer (AO) has failed to, in view of the frequent transactions of purchase and sale of land during the year, as well as in the immediately preceding and succeeding year, as also the fact that the sales are to real estate developer, failed to investigate further, making proper inquiries, from the stand point that the income from these transactions is liable to be assessed as business income, i.e., as against capital gains. We fail to see as to how the doctrine of merger would operate in the instant case to oust the jurisdiction of the revisionary authority. In fact, as stated by the ld. Pr. CIT, the Revenue has not accepted the stand of the AO, resulting in it being in appeal before the Tribunal. The assessee s claim is untenable, and stands made only for the sake of it; the two issues being different. We decide accordingly. 6. Per Gds. 3 6, the assessee contests the impugned order/s on merits. The same, again, admits of no two views. The revision in the instant cases has been for the reason of lack of enquiry, i.e., as regards sale of immovable property valued at Rs. 30 lacs or more, information in respect of which came to the notice of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional notice. The decision of this aspect, i.e., if it, in the given facts and circumstances, represents a jurisdictional fact, would therefore need to be ascertained; there being contrary decisions as well where the Hon'ble Court have otherwise. This is in view of the words so far as may be occurring in s. 148(1). A non-issue or non-timely issue of a notice u/s. 143(2) may not therefore operate to disturb the jurisdiction already assumed by the AO to frame the assessment u/s. 147 upon verification of the assessee s claims ( CIT v. Madhya Bharat Energy Corp. Ltd . [2011] 337 ITR 389 (Del); CIT v. Ram Narain Bansal [2011] 202 Taxman 213 (P H); CIT v. Areva T D India Ltd . [2010] 327 ITR 183 ([2007] 294 ITR 233) (Mad); K.J. Thomas v. CIT [2008] 301 ITR 301 (Ker)). That apart, the fact of non-issue of notice u/s. 143(2) itself is not conclusively established, i.e., as a fact, inasmuch as non-mention of issue of notice u/s. 143(2) in the order cannot by itself be regarded as conclusive of the said fact. It is only thereupon that we could proceed to examine the issue of the same resulting in an absence or otherwise of a valid assumption of jurisdiction to frame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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