Case Law Details
Narendra Kumar Gill Vs ITO (ITAT Delhi)
Moot issue to be decided is whether mentioning the PAN of another entity mistakenly instead of the PAN of the assessee makes the notice issued u/s 148 invalid or not when the notice is addressed to Shri Narendra Kumar Gill and the body of the notice clearly reflects that the notice has been issued to the assessee in his individual capacity.
At this juncture, we hold that there is no need to dwell upon the issue of notice u/s 142 or the contents thereof, as the notice u/s 142(1) do not confer any jurisdiction to the Assessing Officer. Hence, taking cognizance of the notice u/s 142(1) or the contents of the notice will only deviate the main issue of invoking the jurisdiction.
Section 292B meant to save only those notices in which there is in advertent error. Its saves those notices which in substance and effect issued according to the interest and purpose of the Act. In the present case, there is an in advertent error in the notice issued by the AO reflecting only the PAN column of the notice mentions PAN of the “HUF” instead of the ‘individual’ whereas the body of the notice and the address shows that the notice is clearly meant for the assessee himself. The provisions of Section 292B have been further clarified the Circular No. 179 of CBDT dated 30.09.1975 that this provision has been made to provide against purely technical objects without substance coming in the way of validity of the assessment proceedings. In the case of CIT Vs Masonellan India Ltd. 245 ITR 568 (Ker.), the Hon’ble Court held that Section 292B can be invoked if the action was in substance and in effect in conformity with the intent and purpose of the Act. The entire proposition arises from the established juris prudence that substance over form is the underlying philosophy of Section 292B. If in substance and in effect the notice is in conformity and with or according to the intent and purpose of the Income Tax Act, the mistake is to be ignored. Quoting a wrong PAN in the presence of numerous evidences to prove the intent and the purpose is a subject matter of Section 292B in the instant case. If the significance of word “substance” and “effect” is kept in mind then there is no justification to treat the notice as in valid. In the case of Shrish M. Dalvi 287 ITR 242 (Mum), the Hon’ble Court observed that as long as the defect or mistake has not caused prejudice to the assessee, the mistake was protected under the umbrella of Section 292B of the Act. The procedural provision has to be examined from the stand point of substantial complaints. Where such violation has occasioned prejudice to the assessee then only the assessee is protected from the rigors of wrong exercise of jurisdiction. As long as, no prejudice is occasioned to the assessee, as in this case the notice issued is protected by the provisions of Section 292B.
We are not certainly supporting or holding that a notice issued to Shri XXXXX “HUF” or Shri XXXXX “Karta” or Shri XXXXX “Karta HUF” is a valid notice when the assessment proceedings are meant for Shri XXXXX “individual”. In the instant case, the notice has been addressed to “Shri Narendra Kumar Gill” and also mentioned the word which makes it more clear and explicit to whom the notice is aimed at. It is the assessee whether individual, HUF, company, firm, AOP which owns the PAN. When the issue of primacy of the assessee over the PAN or primacy of the PAN over the assessee is to be considered, it is certainly the assessee (individual, HUF, company, firm, AOP) takes precedence.
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