TMI Blog2022 (12) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(3) read with section 147 of the Act is void-ab-initio. Hence the ground of appeal of the assessee is allowed. - ITA Nos.1022 to 1025/AHD/2018 - - - Dated:- 23-11-2022 - SHRI WASEEM AHMED , ACCOUNTANT MEMBER And SHRI SIDDHARTHA NAUTIYAL , JUDICIAL MEMBER Assessee by : Shri P. D. Shah, A.R Revenue by : Shri Alpesh Parmar, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned four appeals have been filed at the instance of the Assessee against the separate orders of the Learned Commissioner of Income Tax (Appeals)- XVI, Ahmedabad, of even dated 26/09/2011 arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Years (1992-1993 to 1995- 1996). ITA No. 1022/Ahd/2018 for AY 1992-1993 2. The assessee has raised the following grounds of appeal: 1. That the order passed by the learned Commissioner of Income Tax (Appeals) is against the law, facts, equity and natural justice and therefore the order passed by the learned AO is to be quashed. 2. That the learned Commissioner of Income Tax (Appeals) has erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143(2) of the Act. 5. The AO in response to the contention of the assessee submitted that notice under section 143(2) along with the notice under section 142(1) of the Act was duly served upon the assessee vide letter dated 8th September 1998 and thereafter the assessee and his authorized representative has made due compliances by way of personal attendance dated 16th September 1998. Thus it becomes evident that there was no objection raised by the assessee on the issuance of notice under section 143(2) of the Act rather the assessee co-operated in the assessment proceedings in response to such notice. Therefore, the assessee is precluded to raise such objection in pursuance to the provisions of section 292B of the Act. Likewise, such issue was not raised by the assessee even before the learned CIT-A on earlier occasion when the matter was set aside by the learned CIT-A to the AO. Thus the AO dismissed the objection raised by the assessee. 6. The assessee carried the matter before the learned CIT-A, who confirmed the order of the AO by observing as under: 3.2 It will be pertinent to mention here that the whole of the department was reorganized in the year 2001 and the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only son of the assessee who was struggling with his family life. The learned AR further submitted that the assessee has fair chance to succeed in his case on merit. Therefore, in the interest of justice and fair play, the appeal of the assessee should be admitted for adjudication on merit. 9. On the contrary, the learned DR submitted that family dispute was there between the son and daughter-in-law of the assessee. As such, the assessee had no other personal problems. As per the learned DR, the assessee could have filed the appeal well in time. According to the learned DR, the delay is inordinate and therefore the same should not be condoned. 10. The learned AR on merit of the case submitted that there was no notice issued under section 143(2) of the Act by the AO and this fact can also be verified from the order sheet entry prepared by the AO. Thus in the absence of such notice, the entire assessment proceedings are null and void. 11. On the other hand, the learned DR before us filed written submission dated 29-09-2022 running into 4 pages wherein it was opposed to condone the delay. The ld. DR also contended that the initial records were also not traceable due to restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigant would be required to explain why the appeal and/or application could not be filed within the period prescribed by limitation and explain the delay for such period for the purpose of linking up the circumstances which had caused the delay during the period of limitation and thereafter. (p. 192) 5. Recently, the Allahabad High Court in Ganga Sahai Ram Swarup v. ITAT [2004] 271 ITR 512 has taken the view that liberal view ought to have been taken by the authority as the delay was only of a very short period and the appellant was not going to gain anything from it. 6. Applying the ratio laid down by the Apex Court as well as various High Courts, we find, it is stated in the petition filed by the assessee for condonation of delay that the order copy was misplaced and thereafter it was found and sent to counsel for preparing the appeal and then, the appeal was prepared and filed before the Tribunal and in that process, the delay of 38 days occurred. As held by the Apex Court, no hard and fast rule can be laid down in the matter of condonation of delay and the Courts should adopt a pragmatic approach and the Courts should exercise their discretion on the facts of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice deserves to be preferred rather, deciding the matter on the basis of technical defect. 12.4 We also note that there is no allegation from the Revenue that the appeal was not filed within the time deliberately. Therefore, we are inclined to prefer substantial justice rather than technicality in deciding the issue. 12.5 The next controversy arises whether the delay of 2237 days was excessive or inordinate. There is no question of any excessive or inordinate when there was reasonable cause which prevented the assessee in filing the appeal. As such we need to consider the cause for the delay and not the length of the delay. Accordingly in our considered view when there was a reasonable cause, the period of delay may not be relevant factor. We find support from the judgment of the Hon ble Madras High Court in the case of CIT v. K.S.P. Shanmugavel Nadai and Ors reported in 153 ITR 596 wherein it was held as under : Since in this case the assessee had been prosecuting other remedies, the time taken by those proceedings should naturally be taken while determining the question whether the assessee had sufficient cause for not presenting the appeal in time. Therefore, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment or recomputation under section 147, the Assessing Officer shall serve49 on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, 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 :] 13.2 We further note that the expression used under section 148 of the Act i.e. so for as may be has been interpreted by the Hon ble Apex court in the case of R Dalmia Vs. CIT reported in 236 ITR 480, that once the return filed under section 148 of the Act then in making the assessment and reassessment under section 147 of the Act the provisions as specified under section 139 of the Act has to be followed. The relevant extract of the judgment is reproduced as under: It is no doubt that assessments under section 143 and assessments and rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on the assessee containing all or any of the requirements which may be included in a notice under sub-section (2) of section 139. The further provision in that section is very significant which provides that the aforesaid notice has to be treated as if it is a notice under section 139(2) and that all the provisions of the Act shall apply to the subsequent procedure and the final assessment. In other words, the notice issued under section 148 has to be deemed to be a notice under section 139(2) and, if the other provisions of the Act have to be applied, an assessment in pursuance of that can be made only under section 143 or section 144. We were not shown any other provision by which the Income-tax Officer is authorised to make an order of assessment under the Act. The provisions contained in section 140A also give an indication that an assessment made in pursuance of a notice under section 148 is a regular assessment under section 143 or section 144, for section 140A(2) provides that any admitted tax paid in pursuance of section 140A(1) shall be deemed to have been paid towards the regular assessment under section 143 or section 144. It is pertinent to note that section 140A(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to indulge into the concurrent findings of both the authorities. In the absence of fulfilment of mandatory requirement of issuance of notice under section 143(2) both the authorities rightly and validly held against the Revenue and in favour of the assessee. Resultantly, the tax appeals deserve no further consideration and are dismissed with no order as to costs. 13.7 Thus, in view of the above we conclude that the AO is under the obligation to issue a notice under section 143(2) of the Act for making the assessment or reassessment as the case may be under section 147 of the Act. 13.8 We further note that the provisions of section 292BB of the Act deals with the situation where notice is not served or not served on time or served in a improper manner viz a viz the assessee does not raise objection before the completion of the assessment. As such, the provision of section 292BB of the Act does not deal about the issuance of notice. In the present case, the issue is whether the assessment framed under section 147/143(3) of the Act is valid without the issuance of the mandatory notice under section 143(2) of the Act. Accordingly we hold that, the provision of section 292BB of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no such notice had been issued after the return of income was filed by the assessee. After the filing of the return of income, unless a notice under section 143(2) of the Act is issued to the assessee, he would have no means of knowing as to whether or not the Assessing Officer has accepted the return of income as filed by him. As held by the Supreme Court, omission to issue a notice under section 143(2) is not a procedural irregularity and is not curable. It is, therefore, mandatory to issue notice under section 143(2) of the Act. Section 292BB provides for a deeming provision that any notice under any provision of the Act, which is required to be served upon the assessee, has been duly served upon him in time, in accordance with the provisions of the Act. This section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of the present case, at the cost of repetition, it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing the notice under section 143(2) of the Act has already been recorded in the assessment order but despite that the revenue was not able to bring the copy of such notice. Indeed, the matter is very old and there is every possibility that records of the Department might have misplaced. However, in this regard we note that the learned AR was able to produce the order sheet entry recorded by the AO during the assessment proceedings which also does not contain any information about the issuance of notice under the provisions of section 143(2) of the Act. The copy of the order sheet entry maintained by the AO during the assessment proceedings is available on record. At this juncture, it is also significant to note that the Department was able to maintain the order sheet entry of such old record thus it can be inferred that the records were not misplaced by the Department in the case of the assessee. However, such records were not containing the copy of the notice issued under section 143(2) of the Act. Thus in such facts and circumstances, we hold that the mandatory notice was not issued under section 143(2) of the Act by the Revenue and accordingly the proceedings against the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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