ITAT Bangalore held that assessment order issued manually without containing Document Identification Number (DIN) as per CBDT Circular No. 19/2019 dated 14.08.2019 is invalid and deemed to have never been issued.
Facts- Post completion of assessment u/s. 153C r.w.s. 143(3), the PCIT noticed from the assessment record that Mr. Pramod Kumar Bhandari, who is a partner along with the assessee in the firm by name M/s Pacific Heights has declared an additional income of 1,05,00,000 being his share of 14% of cash received from Mr. D V Harish, MD of Davanam Constructions with whom a JDA is being entered into by the partnership firm. The PCIT noticed that the AO has not conducted any enquiry with regard to the cash paid and to that extent he treated the assessment order as being erroneous and prejudicial to the interests of the revenue.
Without accepting assessee’s contention, PCIT proceeded to issue an order u/s 263. Being aggrieved, the present appeal is filed.
Conclusion- In assessee’s case there is no dispute about the fact that the impugned order u/s. 263 of the Act has been issued manually. On perusal of the order u/s.263, it is noted that the order neither contains the DIN in the body of the order, nor contains the fact in the specific format as stated in Para 3 that the communication is issued manually without a DIN after obtaining the necessary approvals. Therefore, we are of considered view that the impugned order is not in conformity with Para 2 and Para 3 of the CBDT circular.
In view of these discussions and respectfully following the decision of the Kolkata and Delhi Benches of the Hon’ble Tribunal we hold that the orders passed u/s.263 for the assessment years 2014-15 to 2016-17 are invalid and shall be deemed to have never been issued as per Para 4 of the CBDT circular as the order is not conformity with Para 2 and Para 3. It is ordered accordingly.
FULL TEXT OF THE ORDER OF ITAT BANGALORE
These appeals by the assessee are against the separate orders of the Principal Commissioner of Income Tax (Central), Bengaluru [PCIT] u/s. 263 of the Income-tax Act, 1961 [the Act] dated 24.3.2022 for the assessment years 2014-15 to 2016-17. The appeals were heard together and we deem it appropriate to pass a consolidated order.
2. A search & seizure action u/s. 132 of the Act was conducted in the case of Shri Pramod Bhandari and the premises at No.5, Middle School Road, V V Puram, Bangalore – 560004, belonging to Dilip Kothari (the assessee) was also searched on 2.8.2017. Consequent to the search operation, certain incriminating documents were found and seized at the said premises of the assessee.
3. The AO issued a notice u/s. 153C in response to which the assessee filed the return of income on 9.9.20 19 declaring an income of 26,49,310, Rs.38,38,820 and Rs.47,74,730 for the AYs 2014-15 to 2016-17. The AO called for production of documents and evidence based on which he completed the assessment u/s. 153C r.w.s. 143(3) accepting the returned income filed by the assessee.
4. The PCIT noticed from the assessment record that Mr. Pramod Kumar Bhandari, who is a partner along with the assessee in the firm by name M/s Pacific Heights has declared an additional income of 1,05,00,000 being his share of 14% of cash received from Mr. D V Harish, MD of Davanam Constructions with whom a JDA is being entered into by the partnership firm. The PCIT noticed that the AO has not conducted any enquiry with regard to the cash paid and to that extent he treated the assessment order as being erroneous and prejudicial to the interests of the revenue.
5. The assessee in response to show-cause notice submitted that the statement recorded from Mr. Pramod Bhandari was subsequently retracted and therefore revising the order of assessment based on the retracted statement is not tenable. The assessee further submitted that the details of statement of oath and subsequent retraction was available on record before the AO and the AO has after application of his mind accepted the submissions and did not make any addition. The PCIT did not accept the contention of the assessee and proceeded to issue an order u/s. 263 by holding that the AO had done no enquiry and therefore the order is erroneous and prejudicial to the interests of revenue as per provisions of clause (a) & (b) of Explanation 2 to section 263. The PCIT set aside the order of the AO with a direction to pass a fresh assessment order after making verification and enquiry into the unexplained cash investments made by the assessee during the FY 2013-14. The assessee is in appeal before the Tribunal against the order of the PCIT.
6. The assessee has raised common grounds in all these appeals as follows:-
1. The learned Principle Commissioner of Income Tax (Central), Bangalore (hereinafter referred as “PCIT” for brevity) has erred in passing the Order in the manner passed by him. The Order being bad in law, is liable to be quashed.
2. The learned PCIT has erred in initiating revisionary proceedings u/s 263 without appreciating that the assessment order is not erroneous and all the documents were available on the record of the Assessing Officer;
3. The learned PCIT has erred in initiating revisionary proceedings u/s 263;
(i) Merely by placing reliance on the statement of Mr.Pramod Bhandari without appreciating that same was retracted via affidavit and therefore very basis on which proceedings were initiated does not survive;
(ii) On the basis of some loose sheets without appreciating that it is not an admissible evidence; and
(iii) By relying on the statement of Mr.Harish Davanam without providing. a copy of said statement and an opportunity to cross examine Mr.Harish Davanam;.
4. The learned PCIT has erred in stating that the Assessing officer did not make any enquiry in relation to the JDA transaction without appreciating that the Assessing officer was having complete information/knowledge about the said transaction;
5. The Appellant submits that each of the above grounds/ sub-grounds are independent and without prejudice to one another.
6. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing, of the appeal, so as to enable the income-tax Appellate Tribunal to decide the appeal according to law.”
7. The assessee also made application for admission of additional grounds wherein the issue is contended on legal grounds in all these appeals. The legal grounds relate the validity of the order u/s. 263 for the reason that the order issued is a manual order and does not contain Document Identification Number [DIN] which is not in accordance with the instruction of Central Board of Direct Taxes (CBDT) issued vide circular no.19/2019 dated 14.08.2019. The relevant common additional grounds as in ITA No.403/B ang/2022 are extracted below:-
1.1 The above referred appeal is in respect of the order passed by the Principal Commissioner of Income Tax (Central), Bangalore (`PCIT’) u/s 263 of the Income Tax Act, 1961 (Viet’) on 24.03.2022. It is stated therein that the assessment order passed under section 143(3) r.w.s 153D of the Act dated 10.12.2019 is erroneous as it is prejudicial to the interests of the revenue.
1.2 The learned PCIT has referred to the statement of Mr.Pramod Bhandari recorded during the course of search where in it is stated that partnership firm M/s Pacific heights has paid a sum of Rs.15 crores to Mr. Harish Davanam (Land Owner) of M/s Davanam Constructions Private Limited. It is stated that out of the total consideration of Rs. 15 crores, Rs.7.5 crores was paid in cash. The learned PCIT has stated that the Petitioner is also a partner in the said partnership firm with a share of 14% and during the year under consideration a sum of Rs.1.49 crores was paid in cash. It is stated that the share of the Appellant in cash works out to Rs.20,86.000/-. In drawing the said conclusion, the PCIT has also relied on the statement of Mr.Harish Davanam.
1.3 Accordingly, the learned PCIT partly set aside the assessment order and directed the Assessing Officer to pass a fresh assessment order after considering the above. The Appellant filed an appeal before the Hon’ble Tribunal against the order u/s 263 on 20.05.2022.
1.4 The Appellant submits that, the impugned order passed u/s. 263 of the Act does not contain any Document Identification No. (DIN) nor any reason for non issuance of DIN along with the impugned order. The Appellant submits that the order is without any DIN, which is in violation of the very basic object of CBDT Circular No.19/2019 dated 14.08.2019.
1.5 The whole objective of the said CBDT Circular requiring a mandatory quoting of DIN on all the communications of the department is to maintain the audit trail. which otherwise gets lost. At para 4, CBDT circular states that any order without a DIN is “invalid or deemed to have never been issued”.
1.6 Para 3 of the said circular provides for certain exceptional circumstances when the communication is issued manually, in which case such manually issued communications should contain the fact that the said communication is issued manually without a DIN and the date of obtaining of the written approval of the Chief Commissioner/Director General of Income-tax for issue of said manual communication in the prescribed format.
1.7 Thus, it is observed from the said circular that all the communications from department have to be either generated and issued electronically with DIN or in certain exceptional circumstances the communication may be issued manually without DIN, fact of which along with its written approval has to be stated in the body of the said communication. Failing which para 4 of the said circular states that such communication shall be treated as ‘invalid’ and shall be deemed to have never been issued’.
1.8 In the present case, the order has been issued manually. There is no mention about the fact of issuing the present order manually without a DIN by obtaining an approval from prescribed authority in the prescribed format in the body of the impugned order. In terms of para 4 of the CBDT circular, such a lapse renders this impugned order as invalid and deemed to have never been issued.
1.9 The Appellant had not raised the above ground in the grounds of appeal filed. This is a legal ground. All the details to adjudicate the ground are on record and therefore the legal ground should be admitted.
1.10 Subsequent to filing of appeal, the Honourable Kolkata Tribunal in the case of Tata Medical Centre Trust vs CIT 120221 140 taxmann.com 431 (Kolkata-Tribunal) gave decision on similar facts. The Tribunal held that order passed by the Ld. CIT(E) u/s 263 is invalid and deemed to have never been issued as no DIN is mentioned in the body of the Order by adhering to the CBDT Circular no. 19 of 2019.
1.11 The Appellant submits that it is filing an additional ground with the leave of this Honourable Tribunal under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963 (hereinafter referred to as the “ITAT Rules-). The Appellant places reliance on the ratio laid down by the Hon’ble Supreme Court in the case of National Thermal Power CO Ltd vs CIT [19981 97 Taxman 358 (SC). The Appellant submits that this additional ground goes to the root of the matter and permeates from the facts already on record before the lower authorities and this Tribunal. Thus, the Appellant prays for its admission and adjudication in the interest of justice.
1.12 The Appellant therefore humbly prays that the additional grounds be admitted and adjudicated along with the other grounds of appeal in the course of hearing of the appeal.”
8. We have heard both the parties on the admission of additional grounds and following the Hon’ble Supreme Court judgment in the case of M/s National Thermal Power Co. Ltd. Vs. CIT, 229 ITR 383 (SC), the additional grounds are admitted for adjudication.
9. During the course of hearing the ld AR presented arguments both on legal grounds and on merits. It was submitted by the ld AR that if the grounds on the legal issue is adjudicated then the grounds on merits would become academic. We will therefore first proceed to adjudicate the legal grounds in the following paragraphs.
10. The ld. AR submitted that the order passed u/s. 263 is in violation of the CBDT Circular No.19/2019 dated 14.08.2019.. The ld. AR submitted that the order u/s. 263 is a manual order without any DIN mentioned therein. The PCIT has given two intimations dated 3.2022 and 25.3.2022 wherein two different DINs have been given for the said manual 263 order. The ld. AR drew our attention to paragraph 3 of the above mentioned Circular wherein the CBDT has laid down certain procedures to be followed when a manual order is issued under exceptional circumstances. The ld. AR argued that the assessee is not aware for the exceptional circumstances under which the manual order is issued and whether the procedure as laid down in para 3 have been complied with since there is no mention of the same in the order issued u/s.263 which is one of the requirements as per para 3 of the circular. It is the submission of the ld. AR therefore that as per para 4 of the Circular, any communication which is not in conformity with para 2 & 3 of the said Circular shall be treated as invalid. The ld. AR prayed that the order u/s. 263 be quashed on this legal ground.
11. The ld. DR submitted that the order u/s. 263 is dated 24.3.2022 and the PCIT has attached the intimation with the DIN number along with the order u/s. 263. The ld. DR therefore submitted that the DIN is very much part of the order u/s. 263 and therefore the argument of the ld. AR on the validity of the order u/s. 263 does not have merit. The ld DR also submitted that as per Circular, DIN was mandated for maintaining proper audit trail of all communications and therefore the PCIT generating DIN in a separate intimation on the same date of the order u/s. 263 is valid and need to be considered along with the order u/s. 263.
12. In rebuttal, the ld. AR submitted that as per para 2 of the Circular, the DIN allotted should be duly quoted in the body of such communication and not through a separate intimation. The ld AR also brought to our attention that the PCIT has sent two intimations with different DIN for the same order u/s.263 which is not in conformity with the requirement mentioned in para 2 of the circular and also not in sync with the submissions of the ld DR that the intimation should be treated as part of the manual order issued u/s.263. It is therefore argued by the ld AR that the DIN was not part of the manual order issued by the PCIT and the procedure laid down in the Circular has not been followed which makes the order as invalid. The ld. AR relied on the decision of Kolkata Bench of the Tribunal in the case of Tata Medical Centre Trust v. CIT(E)  140 com 431.
13. We have heard the rival submissions and perused the material on record. Before proceeding further, we will look at the contents of the
CBDT circular No.19/2019 dated 14.08.2019 which is reproduced below –
“CIRCULAR NO. 19/ 2019
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
New Delhi, dated the 14th August, 2019.
Subject: Generation/Allotment/Quoting of Document Identification Number in Notice/Order/Summons/letter/ correspondence issued by the Income Tax Department – reg.
With the launch of various e-governance initiatives, Income-tax Department is moving toward total computerization of its work. This has led to a significant improvement in delivery of services and has also brought greater transparency in the functioning of the tax-administration. Presently, almost all notices and orders are being generated electronically on the Income Tax Business Application (ITBA) platform. However, it has been brought to the notice of the Central Board of Direct Taxes (the Board) that there have been some instances in which the notice, order, summons, letter and any correspondence (hereinafter referred to as “communication”) were found to have been issued manually, without maintaining a proper audit trail of such communication.
2. In order to prevent such instances and to maintain proper audit trail of all communication, the Board in exercise of power under section 119 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), has decided that 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 Document Identification Number (DIN) has been allotted and is duly quoted in the body of such communication.
3. In exceptional circumstances such as, —
(i) when there are technical difficulties in generating / 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, for discharging his official duties: or
(iii) when due to delay in PAN migration. PAN is lying with non-jurisdictional Assessing Officer; or
(iv) when PAN of assessee 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 not 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 state the fact that the communication is issued manually without a DIN and the date of obtaining of the written approval of the Chief Commissioner/ Director General of Income-tax for issue of manual communication in the following format-
” .. This communication issues manually without a DIN on account of reason/reasons given in para3(i)/3(ii)/3(iii)/3(iv)/3(v) of the CBDT Circular No …dated (strike off those which are not applicable) and with the approval of the Chief Commissioner/Director General of Income Tax vide number …. dated ….
4. Any communication which is not in conformity with Para-2 and Para-3 above, shall be treated as invalid and shall be deemed to have never been issued.
5. The communication issued manually in the three situations specified in para 3- (i), (ii) or (iii) above shall have to be regularised within 15 working days of its issuance, by —
i. uploading the manual communication on the System.
ii. compulsorily generating the DIN on the System;
iii. communicating the DIN so generated to the assessee/any other person as per electronically generated pro-forma available on the System.
6. An intimation of issuance of manual communication for the reasons mentioned in para 3(v) shall be sent to the Principal Director General of Income-tax (Systems) within seven days from the date of its issuance.
7. Further, in all pending assessment proceedings, where notices were issued manually, prior to issuance of this Circular, the Income-tax authorities shall identify such cases and shall upload the notices in these cases on the Systems by 3 1th October, 2019.”
14. From the plain reading of the Circular, it is clear that the effective 1st October 2019, no communication shall be issued unless a DIN is allotted and is quoted in the body of the letter except under exceptional circumstances as mentioned in Para 3 which also lays down certain procedures to be followed for issue of manual order under certain circumstances. Accordingly, the manual communication should mention the fact that the communication is issued manually without a DIN and the date of obtaining of the written approval of the Chief Commissioner/ Director General of Income-tax for issue of manual communication in a specific format. Para 4 of the circular states that the communication issued manually not in conformity with Para-2 and Para-3 of the circular, shall be treated as invalid and shall be deemed to have never been issued.
15. We also notice that the Kolkata Bench of the ITAT in the case of Tata Medical Centre Trust (supra) has considered a similar issue and held that –
13. From the above submissions and arguments, we note that it is an undisputed fact that the impugned order u/s. 263 of the Act has been issued manually which does not bear the signature of the authority passing the order. Further, from the perusal of the entire order, in its body, there is no reference to the fact of this order issued manually without a DIN for which the written approval of Chief Commissioner/Director General of Income-tax was required to be obtained in the prescribed format in terms of the CBDT circular. We also note that in terms of para 4 of the CBDT circular, such a lapse renders this impugned order as invalid and deemed to have never been issued.
13.1 It is also important to note about the binding nature of CBDT circular on the Income-tax Authorities for which gainful guidance is taken from the decision of Hon’ble Supreme Court in the case of CIT v. Hero Cycles (P.) Ltd.  94 Taxman 271/228 ITR 463 wherein it was held that circulars bind the ITO but will not bind the appellate authority or the Tribunal or the Court or even the assessee.
13.2 In the case of UCO Bank v. CIT  104 Taxman 547/237 ITR 889 (SC), Hon’ble Supreme Court while dealing with the legal status of such circulars, observed thus (page 896):
“Such instructions may be by way of relaxation of any of the provisions of the sections specified there or otherwise. The Board thus has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions, by issuing circulars in exercise of its statutory powers under section 119 of the Income-tax Act, which are binding on the authorities in the administration of the Act. Under section 1 19(2)(a) , however, the circulars as contemplated therein cannot be adverse to the assessee. Thus, the authority which wields the power for its own advantage under the Act is given the right to forgo the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manners as laid down in section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categorized as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities.”
13.3 In the matter of CIT v. Smt. Nayana P. Dedhia  141 Taxman 603/270 ITR 572 (AP), the Hon’ble Andhra Pradesh High Court held that the guidelines issued by the Board in exercise of powers in terms of section 119 of the Act relaxing the rigours of law are binding on all the officers responsible for implementation of the Act and, therefore, bound to follow and observe any such orders, instructions and directions of the Board.
13.4 In the decision of Dy. CIT v. Sunita Finlease Ltd.  11 taxmann.com 241/330 ITR 491 (Chattisgarh) it was held by the Hon’ble High Court of Chhattisgarh in para 16 that the administrative Instruction No. 9/2004 issued by the Central Board of Direct Taxes is binding on administrative officer in view of the statutory provision contained in section 143(2), which provides for limitation of 12 months for issuance of notice under section 143(2).
While giving its finding, the Hon’ble High Court of Chhattisgarh placed reliance on the decisions in the case of UCO Bank (supra) and Nayana P. Dedhia (supra).
13.5 Hon’ble jurisdictional High Court of Calcutta in the case of Amal Kumar Ghosh v. Asstt. CIT  45 taxmann.com 482/225 Taxman 229 (Mag.)/361 ITR 458 dealt with the issue relating to CBDT circular which according to the Department cannot defeat the provisions of law. While giving its observations and finding on the issue, the Hon’ble Court referred to the decision of Hon’ble Chhattisgarh High Court in the case of Sunita Finlease Ltd. (supra), which are as under:
7. We have considered the rival submissions advanced by the learned Even assuming that the intention of CBDT was to restrict the time for selection of the cases for scrutiny within a period of three months, it cannot be said that the selection in this case was made within the aforesaid period. Admittedly, the return was filed on 29th October, 2004 and the case was selected for scrutiny on 6th July, 2005. It may be pointed out that Mrs. Gutgutia was, in fact, reiterating the views taken by the learned Tribunal which we also quoted above. By any process of reasoning, it was not open for the learned Tribunal to come to a finding that the department acted within the four corners of Circulars No. 9 and 10 issued by CBDT. The circulars were evidently violated. The circulars are binding upon the department under section 119 of the I.T. Act.
8. Gutgutia, learned Advocate submitted that the circulars are not meant for the purpose of permitting the unscrupulous assessees from evading tax. Even assuming, that to be so, it cannot be said that the department, which is State, can be permitted to selectively apply the standards set by themselves for their own conduct. If this type of deviation is permitted, the consequences will be that floodgate of corruption will be opened which it is not desirable to encourage. When the department has set down a standard for itself, the department is bound by that standard and cannot act with discrimination. In case, it does that, the act of the department is bound to be struck down under article 14 of the Constitution. In the facts of the case, it is not necessary for us to decide whether the intention of CBDT was to restrict the period of issuance of notice from the date of filing the return laid down under section 143(2) of the I.T. Act. [emphasis supplied by us by underline]
14. Considering the facts on record, perusal of the impugned order, submissions made by the Ld. Counsel and the department, CBDT circular and the judicial precedents including that of Hon’ble Supreme Court and the jurisdictional High Court of Calcutta, we are inclined to adjudicate on the additional ground in favour of the assessee by holding that the order passed by the Ld. CIT(E) is invalid and deemed to have never been issued as it fails to mention DIN in its body by adhering to the CBDT circular no. 19 of 2019. Accordingly, additional ground taken by the assessee is allowed. Having so held on the legal issue raised by the assessee in the additional ground, the grounds relating to the merits of the case requires no adjudication. Accordingly, the appeal of the assessee is allowed in terms of above observations and findings.”
16. We further notice that a similar view is being taken by the Delhi Bench of the ITAT in the case M/s.Brandix Mauritius Holdings Ltd., vs DCIT (ITA No. 1542/Del/2020 dated 19.09.2022)
17. In assessee’s case there is no dispute about the fact that the impugned order u/s. 263 of the Act has been issued manually. It is also noticed that the DIN for the order is generated through two separate intimations one bearing the same date as the date of the order u/s.263 and the other is dated 25.03.2022. The argument of the ld DR that the intimation dated 24.03.2022 is part of the order and that there is no violation cannot be accepted as generating the DIN by separate intimation is allowed to be done to regularise the manual order (Para 5 of the circular) provided the manual order is issued in accordance with the procedure as contained in Para 3. On perusal of the order u/s.263, it is noted that the order neither contains the DIN in the body of the order, nor contains the fact in the specific format as stated in Para 3 that the communication is issued manually without a DIN after obtaining the necessary approvals. Therefore, we are of considered view that the impugned order is not in conformity with Para 2 and Para 3 of the CBDT circular.
18. In view of these discussions and respectfully following the decision of the Kolkata and Delhi Benches of the Hon’ble Tribunal we hold that the orders passed u/s.263 for the assessment years 2014-15 to 2016-17 are invalid and shall be deemed to have never been issued as per Para 4 of the CBDT circular as the order is not conformity with Para 2 and Para 3. It is ordered accordingly.
19. Since we have decided the issue on legal grounds, the other issues on merits have become academic and dismissed as such.
20. In the result, all three appeals are partly allowed.
Pronounced in the open court on this 21st day of October, 2022.