TMI Blog2016 (2) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings u/s. 153A cannot be held as null and void, for non-issuance of notice u/s. 143(2) of the Act, as this provision is not attracted to proceedings u/s. 153A of the Act - Decided in favour of revenue. - I.T.A. Nos. 362 & 417 to 420/Coch/2015, C.O. Nos. 24-28/Coch/2015 (Arsg. out of I.T.A. Nos. 362 & 417 to 420/Coch/2015) - - - Dated:- 1-2-2016 - S/SHRI B.P. JAIN, AM and GEORGE GEORGE K., JM For the Revenue : Shri Shantam Bose, CIT/DR For the Assessee : Shri N. Vasudev Rajkumar, CA ORDER Per Bench: These five appeals of the Revenue arise from the consolidated order of the Ld. CIT(A)-IV, Kochi dated 20-03-2015 for the assessment years 2001-02 and 2003-04 to 2006-07. The assessee has also filed Cross Objections arising out of the Revenue s appeals. 2. Since the issues in all the appeals are identical, therefore, all the appeals are being taken by this consolidated order. 3. First of all we shall take up the Revenue s appeal in I.T.A. No. 362/Coch/2015 for the assessment year 2001-02 and our order hereinabove shall be identically applicable for all the other years, i.e., 2003-04 to 2006-07. I.T.A. No. 362/Coch/2015 : AY 2001-02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of R. Romi vs. CIT, 363 ITR 311, allowed the ground raised by the assessee and held that the provisions contained in section 143(2) were applicable to the assessment carried out under section 153A. It was further held that in the present case, no notice u/s. 143(2) was issued within the prescribed period and therefore, the assessment was not valid. It was further held that section 292BB of the Act cannot come to the rescue of the Revenue in a situation where the issuance of notice u/s. 143(2) was not within the prescribed period. The appeal of the assessee was allowed vide the impugned order dated 20-03-2015 on this ground alone and the assessment order was treated as invalid. 8. Aggrieved by the aforesaid order passed by the Ld. CIT(A) dated 20- 03-2015, the Revenue has preferred this appeal before us raising the following grounds of appeal: 1. The order of the Commissioner of Income Tax(Appeals)-IV, Kochi is opposed to law, weight of evidence and facts of the case. 2. Ld. CIT(A) erred in holding that the assessments completed u/s. 153A r.w.s. 143(3) for the above assessment years are invalid on the reason that notice u/s. 143(2) was not served in time. 3. Section 292B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability of amended provisions of section 143(2). Clause 42.8 of the CBDT circular states that amended provisions of section 143(2) shall apply to such returns where the notice under that subsection can still be issued on 1st April, 2008.that doesn t mean that section 292BB is also applicable only in case where notice u/s. 143(2) can still be issued on 1st April, 2008. As already clarified in clause 42.7 of the CBDT Circular, provision of section 292BB shall apply in all proceedings which are pending on 1st April, 2008. In the instant case, the proceedings were pending for reasons stated in Para 4 above. Therefore, the assessment is valid, in the light of provisions of section 292BB. 7. For these and other grounds that may be urged at the time of hearing it is requested that the order of the CIT(A) may be set aside and that of the Assessing Officer restored. 9. The Revenue has challenged the aforesaid order on primarily two grounds i.e., that the assessment completed u/s. 153A cannot be said to be invalid on the reason that notice u/s. 143(2) was not served in time and secondly, the assessee having participated in the assessment proceedings and having not raised any objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section. 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made; Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years; Provided further that assessment or reassessment, if any, relating to any assessment year falling within the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of mandatory issue of notice u/s. 143(2). As is noted, a specific notice was required to be issued under Clause (a) of subsection (1) of Section 153A calling upon the persons searched or requisitioned to file return. That being so, no further notice u/s. 143(2) could be contemplated for assessment u/s. 153A. 14. No specific notice was required u/s. 143(2) of the Act when the notice in the present case as required u/s. 153(A) (1)(a) of the Act was already given. In addition, the two questionnaires issued to the assessee were sufficient so as to give notice to the assessee, asking him to attend the office of the Assessing Officer in person or through a representative duly authorized in writing or produce or cause to be produced at the given time by documents, accounts, and any other evidence on which he may rely in support of the return filed by him. 14. Admittedly in the present case, a valid notice u/s. 153A was issued to the assessee. The ratio laid down in the case of ACIT vs. Hotel Blue Moon 321 ITR 362 relied upon by the assessee is not applicable to the facts of the present case as the issue raised therein was pertaining to the issuance of notice u/s. 143(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly in CIT vs. Madhya Bharat Energy Corpn., ITA No.950/08 decided on 11-07-2011. In that case also, this court has held that in the absence of any specific provision u/s. 147 of the Act, the issuance of notice u/s. 143(2) cannot be held to be a mandatory requirement. 15. The judgments relied upon by the Ld. AR in the case of CIT vs. Pawan Gupta (supra) and R. Romi vs. CIT (supra) are not applicable to the present case as the same pertain to the requirement of the issuance of notice in block assessment proceedings made u/s. 158BC of the Act and not u/s. 153A of the Act. 16. Similarly, the ratios contained in the case of CIT vs. Gitsons Engineering Co. (Mad-HC) (supra) and ACIT vs. Greater Noida Industrial Development Authority (All-HC) (supra) are not applicable and are distinguishable with the present case. The issue involved therein was the requirement of issuance of notice u/s. 143(2) of the Act in the proceedings initiated u/s. 147, 148 of the Act. The requirement of notice u/s. 143(2) cannot be said to be analogously applicable to section 153A proceedings only because the issuance of notice u/s. 143(2) of the Act is mandatory in the proceedings u/s. 148 or 158BC of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Para 8 to 18 of the synopsis, submitted by Learned A.R. of the assessee, are relevant for this issue and same should be considered. At this juncture, it was pointed out by the Bench that in these Para of synopsis, reliance has been placed on the judgment of Hon ble Allahabad High Court rendered in the case of CIT vs. Rajeev Sharma (2011) 336 ITR 678 and it is also noted that the judgment of Hon ble Delhi High Court in the case of Ashok Chaddha vs. CIT (2011) 337 ITR 399 is against the assessee but by this very Bench of the Tribunal in a case, argued by the same A.R., it was held that the judgment of Hon ble Delhi High Court in the case of Ashok Chaddha (supra) is to be followed because it is in the context of section 153A whereas the judgment of Hon ble Allahabad High Court rendered in the case of Rajeev Sharma (supra) is in the context of assessment u/s. 147 of the Act. Then why not the same view should be taken in the present case also. In reply, Learned A.R. of the assessee had nothing to say. 6. Learned D.R. of the Revenue submitted that the judgment of Hon ble Delhi High Court in the case of Ashok Chaddha (Supra) should be followed in preference to the judgment of Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been allowed by us, necessarily, the issue on merits which has not been considered by Ld. CIT(A), has to be considered by Ld. CIT(A). The grounds raised in the Cross Objection is only w.r.t. non-consideration of issue on merits by the Ld. CIT(A). Therefore, the Cross Objection bearing No. 24/Coch/2015 is to be allowed for statistical purposes. It is ordered accordingly. 24. Now we shall take up the appeals of the Revenue in I.T.A. Nos. 417-420/Coch/2015 alongwith Cross Objections of the assessee in C.O. Nos.25-28/Coch/2015. 25. Since the issues in the Revenue s appeals are identical as in the Revenue s appeal in I.T.A. No. 362/Coch/2015 and Cross Objection bearing C.O. No. 24/Coch/2015 decided by us hereinabove, accordingly, our order hereinabove shall be identically applicable to the Revenue s appeals in I.T.A. Nos. 417-420/Coch/2015 and Cross Objections of the assessee bearing C.O. No. 25-28/Coch/2015. Accordingly, the Revenue s appeals in I.T.A Nos. 417-420/Coch/2015 are allowed and the Cross Objections of the assessee bearing C.O. Nos. 25-28/Coch/2015 are allowed for statistical purposes. 26. In the result, the appeals filed by the Revenue in I.T.A. Nos.362 417-420/C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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