TMI Blog2023 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the body of assessment order, it does not comply with the conditions of paragraph 3 of the extant circular. Thus, in such a situation, as per paragraph 4 of the said circular, the assessment order has to be treated as invalid and shall be deemed to have never been issued. Thus as relying on BRANDIX MAURITIUS HOLDINGS LTD. [ 2023 (4) TMI 579 - DELHI HIGH COURT] and paragraph 4 of the circular No. 19/2019 dated 14.08.2019 the impugned assessment order is invalid and shall be deemed to have never been issued. Decided in favour of assessee. - SHRI G.S. PANNU, PRESIDENT AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER For the Assessee by : Dr. Rakesh Gupta, Advocate Sh. Somil Agarwal, Advocate For the Revenue by : Sh. Pramod Kumar, Sr. DR ORDER PER SAKTIJIT DEY, J.M.: Captioned cross appeals arise out of order dated 23.09.2021 of learned Commissioner of Income-tax (Appeals)-26, New Delhi pertaining to assessment year 2017-18. 2. In assessee s appeal, being ITA No. 1456/Del/2021, an additional ground has been raised challenging the validity of the assessment order, as it does not contain a Document Identification Number (DIN). Since, the issue rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative submitted that due to certain technical issues at the time of communicating the assessment order, DIN could not be generated. However, he submitted, after obtaining approval of Chief Commissioner of Income-tax on 31.12.2019, the Assessing Officer has generated the DIN on 19.01.2020 which is within 15 working days as per paragraph No. 5 of CBDT circular No. 19/2019 dated 14.08.2019. Thus, he submitted, the Assessing Officer has fully complied with the CBDT circular. Therefore, the assessment order cannot be treated as invalid. 5. We have considered rival submissions in the light of decisions relied upon and perused the materials on record. On a careful scrutiny of the impugned assessment order communicated to the assessee manually, it is transparent that it does not contain any computer generated DIN. It is the case of the assessee that in absence of DIN, the Assessing Officer could have manually communicated the assessment order only after recording reasons in writing in the body of the order and also mentioning the number and date of approval granted by Chief Commissioner/Director General of Income-tax permitting the Assessing Officer for manually communicating the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating/allotting/quoting the DIN and issuance of communication electronically;, or (ii) when communication regarding enquiry, verification etc. is required to be issued by an income-tax authority, who is outside the office, tor discharging, his Official duties: or (iii) when due to delay in PAN migration, PAN is lying with nor-jurisdictional Assessing Officer; or (iv) when PAN of assesses is not available and where a proceeding under the Act (other than verification under section 131 or section 133 of the Act) is sought to be initiated: or (v) When the functionality to issue communication is net available in the system, the communication may be issued manually but only after recording reasons in writing in the file and with prior written approval of the Chief Commissioner / Director General of income-tax. In cases where manual communication is required to be issued due to delay in PAN migration, the proposal seeking approval for issuance of manual communication shall include the reason for delay in PAN migration. The communication issued under aforesaid circumstances shall stale the fact that the communication is issued manually without a DIN and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no communication shall be issued by any Income-tax authority relating to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the 1st day of October, 2019 unless a computer generated DIN has been allotted and is duly quoted in the body of such communication. Paragraph 3 of the circular carves out certain exceptions to paragraph 2 by providing that under certain exceptional circumstances, enumerated in clause (i) to (v) of paragraph 3, the communication may be issued manually but only after recording reasons in writing not only in the file and with prior written approval of the Chief Commissioner/Director General of Income-tax, but the communication issued manually in such circumstances must also state the reasons why communication is issued manually without a DIN and must also mention the date and number of written approval of the Chief Commissioner/Director General of Income-tax for issuing manual communication. In fact, in paragraph 3 of the aforesaid circular, the format for recording such reasons has been specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the final assessment order does not bear a DIN. There is nothing on record to show that the appellant/revenue took steps to demonstrate before the Tribunal that there were exceptional circumstances, as referred to in paragraph 3 of the 2019 Circular, which would sustain the communication of the final assessment order manually, albeit, without DIN. 16.1 Given this situation, clearly paragraph 4 of the 2019 Circular would apply. 17. Paragraph 4 of the 2019 Circular, as extracted hereinabove, decidedly provides that any communication which is not in conformity with paragraph 2 and 3 shall be treated as invalid and shall be deemed to have never been issued. The phraseology of paragraph 4 of the 2019 Circular fairly puts such communication, which includes communication of assessment order, in the category of communication which are non-est in law. 17.1 It is also well established that circulars issued by the CBDT in exercise of its powers under Section 119 of the Act are binding on the revenue. 17.2 The aforementioned principle stands enunciated in a long line of judgements, including the Supreme Court s judgment rendered in K.P. Varghese v. Income Tax Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account in determining the tax liability of the shareholders to whom such loans or advances were given. This circular was clearly contrary to the plain language of Section 2(6-A)(e) and Section 12(1-B), but even so this Court held that it was binding on the Revenue and since: past transactions which would normally have attracted the stringent provisions of Section 12(1-B) as it was introduced in 1955, were substantially granted exemption from the operation of the said provisions by making it clear to all the companies and their shareholders that if the past loans were genuinely refunded to the companies they would not he taken into account under Section 12(1 - B), Sections 2(6-A)(e) and 12(1-B) did not suffer from the vice of unconstitutionality. This decision was followed in Ellerman Lines case [(1972) 4 SCC 474 : 1974 SCC (Tax) 304 : 82 ITR 913] where referring to another circular issued by the Central Board of Revenue under Section 5(8) of the Indian Income Tax Act, 1922 on which reliance was placed on behalf of the assessee, this Court observed: Now, coming to the question as to the effect of instructions issued under Section 5(8) of the Act, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the 2019 Circular, albeit without DIN, can have no standing in law, having regard to the provisions of paragraph 4 of the 2019 Circular. 20. The logical sequitur of the aforesaid reasoning can only be that the Tribunal's decision to not sustain the final assessment order dated 15.10.2019, is a view that cannot call for our interference. 21. As noted above, in the instant appeal all that we are required to consider is whether any substantial question of law arises for consideration, which, inter alia, would require the Court to examine whether the issue is debatable or if there is an alternate view possible. Given the language employed in the 2019 Circular, there is neither any scope for debate not is there any leeway for an alternate view. 21.1 We find no error in the view adopted by the Tribunal. The Tribunal has simply applied the provisions of the 2019 Circular and thus, reached a conclusion in favour of the respondent/assessee. 9. Thus, keeping in view the aforesaid observations of the Hon ble Delhi High Court and in terms of paragraph 4 of the circular No. 19/2019 dated 14.08.2019, we have no hesitation in holding that the impugned assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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