TMI Blog2024 (2) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... Rangari [ 2017 (10) TMI 1079 - ITAT MUMBAI] which in our opinion was the right approach to be adopted, accordingly, in the present case the return filed by the assessee though belatedly, which has been recognised by issuing a valid acknowledgement, subsequently the same was E-verified by the assessee and has been duly accepted by the e-portal of the department. AO has acted upon such return therefore the same cannot be treated as a non-Est return. Mandation of issuance of notice u/s 143(2) in completing the assessment u/s 147 r.w.s. 143(3) - As in the case of Shri Dev Narayan Sahu [ 2022 (5) TMI 110 - ITAT RAIPUR] wherein it has been decided that, issuance of notice u/s 143(2) is a sine-qua-non for framing of an assessment u/s 143(3), this view is well supported by the judgment of M/s Hotel Blue Moon[ 2010 (2) TMI 1 - SUPREME COURT] , wherein as held that issuing of notice u/s 143(2) of the Act is mandatory and not a procedural mistake, if the notice is not served within the prescribed period then assessment order would be invalid. In view of such observations, we are of the considered opinion that the order passed u/s 147 r.w.s. 143(3) in the present case was invalid on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961. 2. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Learned PCIT (Central), Bhopal has erred in holding that the order dated 30.12.2019 passed by the Learned A.O. u/s 147 r.w.s 143(3) of the Income Tax Act, 1961 was erroneous and prejudicial to the interests of revenue and thereby setting aside the same. 3. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Appellant submits that the order passed by the Learned A.O. was neither erroneous nor prejudicial to the Interest of the Revenue and hence the revision of the same by the Learned PCIT (Central), Bhopal u/s 263 of the Income Tax Act, 1961 is erroneous and bad-in-law. 4. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the learned A.O had not made only adequate inquires, but had also undertaken necessary verification based on the details/documents sought from the appellant during the course of assessment proceedings, hence, the assessment order dated 30.12.2019 passed by learned AO is neither 'erroneous' nor 'prejudicial' to the Interest of the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30/03/2013. The case of the assessee was reopened by issuing a notice u/s 148 on 30.03.2019. In response to the notice u/s 148 of assessee has filed his return of income on 01.06.2019 i.e., after 30 days from the date of notice u/s 148, declaring total income of Rs. 8,71,310/- shown in the return of income, which as it was accepted by the Ld AO. 4. The case of the assessee was subsequently perused by the Ld. PCIT (Central), Bhopal. On examination of assessment records Ld. PCIT has considered it appropriate to show cause the assessee u/s 263(1) of the I.T. Act, accordingly, a notice was issued on 14.01.2022, the contents of the notice issued u/s 163 are extracted as under: Notice u/s 263 of the Income Tax Axt, 1961- Show Cause- reg. Please refer to the above. Assessment order u/s 147 r.w.s 143 (3) of the Income Tax Act for A.Y. 201213 was passed by the Assessing Officer vide order dated 30.12.2019. Assessment records were called from the Assessing Officer examined. Certain issues emerged from the examination of the assessment records which are discussed herein: Examination of the records revealed that credible information about advance of cash loan a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pathan Vs State of Maharashtra Other civil appeal no. 7728 of 2012 (reported in AIR 2013 SC/58/(2013)/SCC/465. In view of the above discussion, it becomes prima facie clear that the AO has passed the assessment order dated 30.12.2019 without making any enquiry or verification which he should have been made during the assessment proceedings making the assessment order prima facie erroneous in so far as it is prejudicial to the Interest of revenue within meaning of explanation 2(a) of section 263(1) of IT Act. Accordingly, you are hereby given an opportunity of being heard as per section 263(1) of the Income Tax Act, 1961 to present yourself in person or through an authorized representative or file submission through online mode on 24.01.2022 at 11:30 A.M. to explain your case before the Pr. Commissioner of Income Tax (Central), Bhopal. In case, no reply is received by stipulated date, it will be presumed that you have nothing to say in the matter and a decision will be taken on the basis of records available in this office. 5. In response to aforesaid notice u/s 263(1), the authorized representative of the assessee appeared on 03.02.2002 before the Ld. PCIT, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Book. (2) The Learned A.O issued notice u/s 148 on 30.03.2019, copy of notice u/s 148 is placed on Page No 5 of the Paper Book. The assessee duly filed the return of income in response to the notice u/s 148 electronically on 01.06.2019, copy of ITR acknowledgement along with Computation of Total Income filed in response to the notice u/s 148 is placed on Page No 6 to 9 of the Paper Book. The Learned A.O did not issue any notice u/s 143(2) of the Income Tax Act, 1961 as mandated u/s 143. (3) The Learned A.O passed the assessment order u/s 143(3) r.w.s. 147 vide order dated 30.12.2019, copy of the assessment order passed by the Learned A.O is placed on Page No 10 to 15 of the Paper Book. (4) Assessment was completed u/s 143(3) r.w.s. 147 only which is self-evident from the following:- Sl. No. Particulars Following Page No. of Paper Book- 2 1. Copy of order u/s 7(1) of the Right to Information Act, 2005 dated 09.08.2023 bearing F.N0. DCIT(Central1)/RPR/RT1/ 2023-24 passed by the Learned DCIT, Central Circle-I, Raipur 178-179 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Delhi 1 -7 of LPB 1 4. PCIT-08 vs. Shri Jai Shiv Shankar Traders Pvt. Ltd. ITA 519/2015 No. Hon'ble High Court of Delhi 8-16 of LPB-I 5. JCIT vs. U.S. Roofs Ltd. (2023) 37 NYPTTJ 741 Mumbai Hon'ble ITAT, Mumbai Bench 8-13 of LPB-3 6. PCIT vs. National Informatics Centre Services Inc. (2018) 400 ITR 387 (Del) The Hon'ble High Court of Delhi 20-24 of LPB-3 7 ACIT vs. SG Portfolio P Ltd. (2021) 211 TTJ (Del) 970 Hon'ble ITAT, Delhi 'G' Bench 14- 19 of LPB-3 6.1 (b) The Learned PCIT (Central), Bhopal issued notice u/s 263, copy of the notice dated 14.01.2022 is placed on Page No 16 to 18 of the Paper Book. The Learned PCIT could not have assumed jurisdiction u/s 263 in respect of non-Est proceedings which was vitiated by the vice of non- issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of time limit stipulated in the notice u/s 148, there is no merit in the said contention of the Learned PCIT inasmuch as the return filed in response to the notice u/s 148 is very much a return filed u/s 139 and Section 139(4) permits belated filing of the return and therefore, the Learned A.O is not absolved from his duty to issue notice u/s 143(2) merely because the return was filed by the assessee in response to the notice u/s 148 after the expiry of time limit stipulated therein, in this regard, the assessee also relies on the decision of the Hon'ble Mumbai Bench of the Tribunal in the case of Smt. Amina Ismil Rangari vs. ITO reported in (2017) 167 ITD 199 (Mumbai) copy whereof is placed on Page No. 80 to 86 of the CLC. 6.1 (d) The assessee places reliance on following judicial pronouncements where the assessee had filed the return of income in response to the notice u/s 148 after the expiry of the time stipulated therein and no notice u/s 143(2) was issued and yet it was held that the assessment order is bad-in- law, thus, mere delay in filing of return of income in response to the notice under section 148 does not absolve the Learned A.O from his duty to issue not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fibers Fabrics International (P) Ltd. vs. DCIT (2016) 182 TTJ (Bang) 374 The Hon'ble ITAT, Bangalore 'C' Bench 42 - 51 of LPB-3 Second Argument: (7) Information received from Investigation Wing formed the basis for reason to believe: The Learned A.O initiated the reassessment proceedings in the light of information received from the Investigation Wing which is evident from the bare reading of contents of Reason to Believe, copy whereof is placed on Page No. 80 to 81 of the Paper Book, thus, the Learned A.O was conscious about the information and documents received from the Investigation Wing. 7.2 Specific queries raised vide notice u/s 142(1) dated 01.07.2019, 23.08.2019, 21.10.2019 16.12.2019 and show cause notice dated 27.11.2019: During the course of the reassessment proceedings the Learned A.O had raised specific queries vide statutory notices u/s 142(1) dated 01.07.2019, copy whereof is placed on Page No. 82 to 83 of the Paper Book and the Learned A.O had even issued show cause notice for addition of Rs. 1,75,00,000/- on account of alleged pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 The Hon ble High Court of Bomba 106 - 112 8. Hill Queen Investment (P) Ltd. vs. PCIT (2021) 189 ITV) 139 (1 01) The Hon'ble High Court of Kolkata 113 - 130 Third Argument: (8) The assessment order passed u/s 147 r.w.s. 143(3) is bad-in-law also due to the following reasons: - 8.2 The proceedings were initiated based on borrowed satisfaction, in this regard, the assessee relies on following judicial pronouncements: - S. NO. TITLE CITATION AUTHORITY Following age No. of the CLC 1. PCIT vs. Meenakshi Overseas Ltd. (2017) 395 ITR 677 (Del) Hon'ble Hig Court of Delhi 119 - 127 of LPB-I 2. ACIT vs. Dhariya Construction Com an (2010) 328 ITR 515 (SC Hon'ble Supreme Court of India 128 - 128 of LPB-I 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a 'return of income' filed beyond the stipulated time period, but however, the same would not cease to be a 'return of income' filed pursuant to the notice issued under s. 148, though involving some delay. This view is supported from the very fact that as per s. 234A (3), where the 'return of income' in compliance to a notice under s. 148 is filed beyond the stipulated time period, then Interest under the said statutory provision is imposed on the assessee date of furnishing of the same. of s. 234A (3) clearly contemplates that a 'return of income filed after the expiry of the stipulated time period shall still continue to be a 'return of income' filed by the assessee pursuant to the notice under s. 148. This view also stands fortified from the very fact that after the assessee had filed the 'return of income' pursuant to the notice under u/s 148 on 10th Aug., 2010, the same was acted upon by the AO and a Notice under s. 143(2) was issued to the assessee, followed by culmination of the same into an assessment under s. 143(3) r/w s 147 when issuance of a notice under s. 143(2) pre supposes the availability of a 'return of income&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safely be traced/gathered from the aforesaid notice u/s.142(1) of the Act, dated 14.10.2016, the CIT(Appeals) was of the view that said notice could be viewed as a notice u/s.143(2) of the Act. Accordingly, on the basis of his aforesaid observations the CIT(Appeals) upheld the order passed by the Assessing Officer u/s.143(3)/148 of the Act, dated 21.11.2016. For the sake of clarity and in order to dispel any doubt the observations of the CIT(Appeals) are reproduced as under: 2.3. First, taking the addition ground taken by the appellant challenging the validity of order passed u/s.143(3)/148 as not return of income was filed by him either u/s.139 or u/s.147. As per the assessee in case of no return, the assessment cannot be made u/s.143(3)/147. On going through the assessment order, I find that AO has du/y issued notice u/s.142(1) on 16/09/2016 calling details/documents vide S/. No. (i) to (ix) of the notice. As per sub section 2 of Section 143 whereas return has been furnished u/s.139 or in response to a notice in under sub section (1) of Section 142, the AO sha// serve on the assessee a notice requiring him either to attend the office of the AO or to produce or cause to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isconceived in the context of the issue, which was raised by the assessee before him, but in fact is absolutely devoid and bereft of any force of law. As observed by us herein above, it was claimed by the assessee that now when he had not filed any return of income with the Assessing Officer then how could an assessment be framed u/s.143(3) of the Act in his case. However, the CIT(Appeals) losing sight of the issue raised by the assessee before him, had upheld the order passed by the Assessing Officer u/s.143(3)/148 of the Act dated 21.11.2016 on the ground that notice u/s.142(1) of the Act, (supra) could safely be viewed/construed as a notice u/s.143(2) of the Act. In our considered view, the aforesaid observation of the CIT(Appeals) was absolutely out of context of the claim that was raised by the assessee before him. 8. Be that as it may, in our considered view, as stated by the assessee before the CIT(Appeals), and rightly so, in the absence of any return of income having been filed by him, no assessment u/s.143(3)/148 of the Act could have been framed in his hands. Adverting to the observation of the CIT(Appeals) that notice(s) issued u/s.142(1) of the Act, dated 16.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmatics Centre Services Inc. (2018) 400 ITR 387 (Del) The Hon'ble High Court of Delhi ACIT vs. SG Portfolio P Ltd. (2021) 211 TTJ (Del) 970 Hon'ble ITAT, Delhi 'G' Bench 12. Ld. AR further submitted that the action of Ld PCIT was beyond his jurisdiction in invoking the revisionary provisions of section 263 on the basis of a non-Est assessment on account of non-issuance of compulsory notice u/s 143(2). Such a peculiar situation on issue under deliberation has been discussed and decided in the following judgments, upon which the Ld. AR of the assessee has placed reliance: 1. PCIT vs. Badal Prakash Jindal, HUF, Bargarh I.T.A. Nos. 8, 7, 9 10 of 2023 dated 02.03223 The Hon'ble High Court of Orissa at Cuttack 2. Maruti Clean Coal and Power Ltd. vs. PCIT-I, Raipur ITA No. 55/ RPR/2021 dated 31.10.2022 The Hon'ble ITAT, Raipur Bench 3. Minimax Commerce (P.) Ltd. vs. ACIT, Raipur (2021) 133 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i in the case of Westlife Development Ltd. Vs. Pr. CIT- 5, Mumbai (2017) 88 taxmann.com 439 (Mumbai). It was, inter alia, observed by the tribunal that an assessee can challenge the validity of an order passed u/s.263 of the Act on the ground that the impugned assessment order was non-Est. Indulgence of the tribunal in the said case was sought by the assessee for adjudicating the following issues (as culled out from the order): 1. Whether the assessee can challenge the validity of an assessment order during the appellate proceedings pertaining to examination of validity of order passed u/s 263? 2. Whether the impugned assessment order passed u/ s 143(3) dated 24- 10-2013 was valid in the eyes of law or a nullity as has been claimed by the assessee? 3 . If the impugned assessment order passed u/ s 143(3) was illegal or nullity in the eyes of law, then, whether the CIT had a valid jurisdiction to pass the impugned order u/ s 263 to revise the non-Est assessment order? (A). Answering the first issue, i.e., whether the assessee remains within his right to challenge the validity of an assessment order during the appellate proceedings pertaining to examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is illegal in terms of its jurisdiction or if the same is null void in the eyes of law on any jurisdictional grounds, then, whether it can give rise to initiation of further proceedings and whether such subsequent proceedings would be valid under the law as contained in Income Tax Act? It has been vehemently argued before us that the subsequent proceedings (i.e. collateral proceedings) derive strength only from the order passed in the original proceedings (i.e. primary proceedings). Thus, if order passed in the original proceedings is itself illegal, then that cannot give rise to valid revision proceedings. Therefore, as per law, the validity of the order passed in the primary (original) proceedings should be allowed to be examined even at the subsequent stages, only for the limited purpose of examining whether the collateral (subsequent) proceedings have been initiated on a valid legal platform or not and for examining the validity of assumption of jurisdiction to initiate the collateral proceedings. If it is not so allowed, then, it may so happen that though order passed in the original proceedings was illegal and thus order passed in the subsequent proceedings in turn would al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remained Uncontested operates as res-judicata qua the parties affected by it. Hon'ble apex court, taking support from aforesaid judgment, observed as under: In the light of this position in law the Question for determination is whether the impugned decree of the Civil Court can be assailed by the appellant in execution. It is already held that it is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord. Thereby the Civil Court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. Therefore, though the decree was passed, and the jurisdiction of the Court was gone into in issue Nos. 4 and 5 at the ex-parte trial, the decree there-under is a nullity, and does not bind the appellant. Therefore, it does not operate as a res judicata. The Courts below have committed grave error of law in holding that the decree in the suit operated as res judicata and the appellant cannot raise the same point once again at the execution. 8.4. Similar view has been taken by Hon'ble Supreme Court by following aforesaid judgments recently in the case of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion. The AO rejected plea of the assessee, but the AAC accepted this ground and also held the re-assessment to be bad in law on jurisdictional ground. Against the order of the AAC the Revenue went in appeal before the Tribunal and specifically raised the plea that the Question of jurisdiction to reopen the assessment shaving been expressly given up by the assessee in the appeal against the reassessment order in the first round, the assessee was debarred from raising that point again before the AAC and the AAC was equally wrong in permitting the assessee to raise that point which had become final in the first round and in adjudicating upon the same. The plea of the Revenue impressed the Tribunal which took the view that after its earlier order in the first round of proceedings the matter attained finality with regard to the point of jurisdiction which was given up before the AAC and not agitated further and that in the remand proceedings what was open before the Assessing Officer was only the question whether the addition was justified on merits and the point regarding the jurisdictional aspect was not open before the Assessing Officer. According to the Tribunal, the assessee havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the reassessment order, to set up or canvass its correctness in collateral proceedings taken for rectification thereof u/ s 154. The bench minutely analyzed law in this regard and applying the principle of 'coram non judice' and following aforesaid judgments of the supreme court, it was held that if an assessee seeks to challenge the reassessment proceedings as being without jurisdiction, when action for rectification is sought to be taken on the assumption of the validity of the reassessment order, then the assessee has to step in and protect its Interests and the liberty to Question even the validity of the reassessment proceedings ought to be given to it.... ... (emphasis supplied). 8.8 Similar view was taken in another decision of the Tribunal in the case of Dhiraj Suri vs ACIT 98 ITD 87 (Del). In the said case, appeal was filed by the assessee before the Tribunal against the levy of penalty. In the appeal challenging the penalty order, the assessee challenged the validity of block assessment order which had determined the tax liability of the assessee on the basis of which penalty was levied subsequently. The revenue objected with respect to the ground of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue. This issue has also been decided by the co-ordinate bench (Delhi Bench of Tribunal) in the case of Krishna Kumar Saraf vs CIT (supra). The relevant part of the order is reproduced below: 17. There is no quarrel with the proposition advanced by Id. DR that the proceedings u/ s 263 are for the benefit of revenue and not for assessee. 18. However, u/ s 263 the Id. Commissioner cannot revise a non-Est order in the eye of law. Since the assessment order was passed in pursuance to the notice U/S 143(2), which was beyond time, therefore, the assessment order passed in pursuance to the barred notice had no legs to stand as the same was non-Est in the eyes of law. All proceedings subsequent to the said notice are of no consequence. Further, the decision of Hon'ble Madras High Court in the case of CIT Vs. Gitsons Engineering Co. 370 ITR 87 (Mad) clearly holds that the objection in relation to non service of notice could be raised for the first time before the Tribunal as the same was legal, which went to the root of the matter. 19. While exercising powers u/ s 263 Id. Commissioner cannot revise an assessment order which is non-Est in the eye of law because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are culled out as under: 10.4 The Learned Counsel for the Assessee also argued that since the assessment is framed on the basis of the revised return filed on 1stJuly, 2013 and according to Ld. CIT it was a non-Est return, if assessment is framed on non-Est return, the assessment itself would be mill and void and could not be subject matter of jurisdiction under section 263 of the I.T. Act. In support of his contention, he relied upon the decision of the ITAT, Mumbai Bench in the case of Westlife Development Ltd. (supra) in which original assessment order was held to be null and void in the eye of Law as same was passed upon non-existing entity. Therefore, it was held that Ld. CIT could not have assumed jurisdiction under the Law to make revision of a non-Est order. Therefore, impugned order passed under section 263 by the CIT was also held invalid in the eye of Law and therefore, the same was quashed. The A.O in this case has framed the assessment on the basis of revised return filed on 1st July 2013 and taken the income from the same for computing the total income of assessee. It is also case of the Revenue that even the A.O. did not mention original return of income in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly reproduced earlier, clearly supports the Assessee s plea. 17. There is no quarrel with the proposition advanced by Id. DR that the proceedings u/ s 263 are for the benefit of revenue and not for assessee. 18. However, u/s 263 the Id. Commissioner cannot revise a non- Est order in the eye of law. Since the assessment order was passed in pursuance to the notice u/ s 143(2), which was beyond time, therefore, the assessment order passed in pursuance to the barred notice had no legs to stand as the same was non-Est in the eyes of law. All proceedings subsequent to the said notice are of no consequence. Further, the decision of Hon'ble Madras High Court in the case of CIT Vs. Gitsons Engineering Co. 370 ITR 87 (Mad) clearly holds that the objection in relation to non-service of notice could be raised for the first time before the Tribunal as the same was legal, which went to the root of the matter. 19. While exercising powers u/s 263 Id. Commissioner cannot revise an assessment order which is non-Est in the eye of law because it would prejudice the right of assessee which has accrued in favour of assessee on account of its income being determined. If Id. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order by Hon ble Apex Court in the case of Jai Prakash Singh (1996) 219 ITR -737 (SC), wherein Hon ble Apex Court has held as under: The principle that emerges from the above decision is that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions [charging sections]. Any such omission or defect may render the order made irregular-depending upon the nature of the provision not complied with -but certainly not void or illegal. 16. Ld. CIT DR further placed before us the order of Hon ble High Court of Kerala in the case of Padinjarekara Agencies (P.) Ltd, reported in [2017] 398 ITR 381, wherein Hon ble High court has held as under: 11. However, in so far as this case concerned, Question to be considered is whether the omission to mention Section 143(2) literally in any one of the notices issued to the assessee would invalidate the assessment order. While in this context, it is relevant to take note of the Division Bench judgment of this court in K J. Thomas v. CIT [20081 301 ITR 301, where a Division Bench of this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. 13. In such circumstances, answering the aforesaid Question of law in favour of the Revenue and against the assessee this appeal is dismissed. 17. Ld. CIT DR also submitted before us a letter from the DCIT (Central) Circle-1, report dated 28.06.2023 w.r.t. production of case records and clarifications in the case of assessee qua the validity of return, the same has extracted as under: 18. Ld. CIT DR, in view of aforesaid submissions has argued that the since the assessee had not filed a valid return, even the same was not e- verified by the assessee within stipulated time, requirements of issuing notice u/s 143(2) was dispensed with and the same cannot rescue the contention of the assessee, thus the proceedings initiated u/s 263 are valid, well within the powers of Ld PCIT, deserves to be sustained. 19. In response to the aforesaid submissions of the Ld. CIT. DR, Ld. AR of the assessee, in rejoinder has submitted before us the copy of the acknowledgement of return filed in response to notice u/s 148 on 01.06.2019, which was E-Verify on 30.12.2019 and accepted by the revenue, copy of the same is extracted as under: 20. It was the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belatedly in response to notice u/s 148 cannot be termed as an invalid return. Such contentions of the assessee were not found favour before the Ld. PCIT, he had treated the return filed as non-Est therefore, has concluded that there was no requirement of issuance of a notice u/s 143(2) in case of a non-Est return, Ld. PCIT also observed that the assessment should have been framed u/s 144 of the IT Act. The questions raised before us to be adjudicated are: (i) Whether a return filed beyond the prescribed time limit under the notice u/s 148, should be treated as non-Est return or not? (ii) Whether an assessment completed u/s 143(3) r.w.s. 147 can be treated as invalid or non-Est, merely when a notice u/s 143(2) has not been issued? (iii) Whether the assessee can challenge the validity of assessment order passed u/s 147 r.w.s. 143(3), during the Appellate proceedings pertaining to examination of validity of assumption of jurisdiction and the order passed u/s 263? (iv) If the impugned assessment order passed u/s 143(3) was found to be illegal or at nullity in the eyes of law, then, whether the Ld. PCIT had a valid jurisdiction to pass the impugned order u/s 263 to revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we hold that as per law the assessee is permitted to challenge the validity of order passed u/s 263 on the ground that the impugned assessment order selected for revisionary proceedings, was a non-Est order. 26. Apropos, Question No. (4) that, if an assessment order passed u/s 143(3) was illegal or at nullity in the eyes of law then whether the Ld. PCIT holds a valid jurisdiction to initiate the revisionary proceedings and to pass an order u/s 263 on the basis of a non-Est assessment order, the answer is in negative. Our view is further fortified, from the view taken by ITAT, Raipur, in the case of Maruti Clean Coal Power Ltd. (supra), therefore, respectfully following the same, we are of the view that the order passed u/s 263, challenged by the assessee in the present case based on the settled position of law, since the impugned assessment order u/s 143(3) r.w.s. 147 which was selected for revisionary proceedings, itself had been held as invalid/ at nullity in the eye of law, therefore, the same could not have been revised by the Ld. PCIT u/s 263 of the Act. 27. With regard to the case laws relied upon by the Ld. CIT DR, we do not find any corelation with the issue involved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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