Revision order u/s. 263 quashed as order passed in original proceeding itself is illegal: ITAT Surat

Neelkanth Quarry Works LLP Vs PCIT (ITAT Surat)

ITAT Surat held that if the order passed in the original proceeding itself is illegal, then that cannot give rise to valid revision proceedings. Thus, revision order u/s. 263 quashed as order passed u/s. 147 r.w.s. 144 & 144B is invalid.

Facts- The assessee is a Limited Liability Partnership Firm (in short, ‘LLP’). The date of incorporation of LLP was 22.06.2016. The LLP agreement was entered into by three partners namely, Mr. Pratapsingh Ranjitsing Rajput, Mr. Shailendrasingh Pratapsingh Rajput and Mrs. Shwetasingh S. Rajput. M/s Shree Nilkanth Quaryy Works (partnership firm) was converted into LLP on 04.07.2016.

Information was received by the AO that the above firm had transactions of Rs.1,55,55,450/- with M/s Maruti Enterprises, which was providing accommodation entries during the year under consideration. As the partnership firm was converted into LLP with the same name with all assets and liabilities of the erstwhile firm with a new PAN, proceeding u/s 147 of the Act was initiated against the assessee LLP with prior approval of the competent authority u/s 151 of the Act. Since it was not possible in faceless scheme, the AO assessed u/s 147 r.w.s. 144 & 144B of the Act at Rs. ‘Nil’ income without making any addition.

PCIT examined the records and found that the assessee had received accommodation entries of Rs.1,55,55,450/- from M/s Maruti Enterprises. PCIT observed that the issue was not considered by AO and the income has been under assessed. Therefore, the order passed u/s 144 r.w.s. 147 of the Act was both erroneous and prejudicial to the interests of revenue. In the show cause notice u/s 263 dated 07.02.2024.

Conclusion- After conversion of the firm into LLP, the LLP lost its existence. It has been informed by the revenue that the erstwhile firm filed its last return for AY.2016-17 and subsequently only LLP has filed the returns. This has been done by the erstwhile firm because the LLP was incorporated on 22.06.2016 and the LLP agreement was entered into on 24.07.2016. Therefore, the notice u/s 148 dated 30.03.2021 could not have been issued in the name of the non-existing entity, which was not a ‘person’ u/s 2(31) of the Act. In view of the above and respectfully following the decisions cited supra, we do not find any infirmity in issuance of notice u/s 148 of the Act by the AO in the name of the LLP.

ITAT, Mumbai in case of Westlife Development Ltd., (2016) 49 ITR (T) 406 (Mum) wherein it was held that if the order passed in the original proceeding itself is illegal, then that cannot give rise to valid revision proceedings.

Held that since the order passed u/s 147 r.w.s. 144 & 144B of the Act is an invalid, any further proceedings originated from the said order cannot be held as valid proceedings, which includes the revisionary proceedings initiated by the Ld. PCIT. The facts of the instant appeal are similar. There is no reason to differ from decision of the ITAT, Cuttack cited supra. Hence, the revision order passed u/s 263 of the Act is quashed.

FULL TEXT OF THE ORDER OF ITAT SURAT

This appeal by the assessee emanates from the order passed under section 263 of the of the Income-tax Act, 1961 (in short, “the Act”) by the Learned Principal Commissioner of Income Tax, Valsad [in short, “Ld. PCIT]” dated 15.03.2024 for assessment year 2015-16.

2. The grounds of appeal raised by the assessee are as under:

“1. On facts and circumstances of the case, Ld. Pr.CIT, Valsad has erred in law and on fact to revise appellant’s assessment u/s 263 of the I.T. Act, ignoring the fact and law that initiation of proceedings u/s 263 and/or u/s 147 upon non-existing entity is not valid in law. Even the assessment order u/s 147 r.w.s. 144B of NFAC, Delhi dated 24-03-2022 is also bad in law. He further erred in law that the proceedings 263 cannot be initiated against an intimation/order u/s 143(1a) of the Act.”

3. The facts of the case are that the assessee is a Limited Liability Partnership Firm (in short, ‘LLP’). The date of incorporation of LLP was 22.06.2016. The LLP agreement was entered into by three partners namely, Mr. Pratapsingh Ranjitsing Rajput, Mr. Shailendrasingh Pratapsingh Rajput and Mrs. Shwetasingh S. Rajput. M/s Shree Nilkanth Quaryy Works (partnership firm) was converted into LLP on 04.07.2016. The firm had filed its return of income for AY.2015-16 on 30.09.2015 declaring total income of Rs.57,43,190/-. Subsequently, information was received by the AO from the ADIT (Inv.), Unit-1(2), Ahmedabad that the above firm had transactions of Rs.1,55,55,450/- with M/s Maruti Enterprises, which was providing accommodation entries during the year under consideration. As the partnership firm was converted into LLP with the same name with all assets and liabilities of the erstwhile firm with a new PAN, proceeding u/s 147 of the Act was initiated against the assessee LLP with prior approval of the competent authority u/s 151 of the Act. In response thereto, the assessee submitted that it was not able to file return in response to notice u/s 148 due to system problem in the income-tax portal. Since the LLP was incorporated on 22.06.2016 i.e., after 31.03.2015, it was not allowed to file return for AY. 2015-16. In view of the above fact, the AO observed that return should be filed by assessee manually and order should also be passed manually. Since it was not possible in faceless scheme, the AO assessed u/s 147 r.w.s. 144 & 144B of the Act at Rs. ‘Nil’ income without making any addition. The Ld. PCIT examined the records and found that the assessee had received accommodation entries of Rs.1,55,55,450/- from M/s Maruti Enterprises. At para 4 of the order, he observed that the issue was not considered by AO and the income has been under assessed. Therefore, the order passed u/s 144 r.w.s. 147 of the Act was both erroneous and prejudicial to the interests of revenue. In the show cause notice u/s 263 dated 07.02.2024, the Ld. PCIT stated that AO neither verified the information provided by the Investigation Wing not finalized the assessment manually. The accommodation entries of Rs.1,55,55,450/- in the hands of the assessee remain unexplained. In the reply, the assessee submitted that in the manual return income was declared as ‘Nil’ and figures of balance sheet and profit and loss account was also shown at Rs. ‘Nil’ because Shree Nilkanth Quarry Works LLP was not in existence in 2015-16 (FY.2014-15). There is no question of any accommodation entry because assessee was not in existence. The assessee further requested to supply the information received from Investigation Wing, nature of accommodation entries, admission and other evidences for M/s Maruti Enterprises, proof of accommodation entries such as bank statement etc. and other documents. The Ld. PCIT considered the submission of the assessee and rebutted the argument by stating that the partnership firm was converted into LLP and the income and liabilities of the erstwhile firm were also transferred to the newly created LLP. Therefore, LLP cannot deny the fact of accommodation entry. He further stated that there was credible information received from ADIT (Inv.), Unit – 1(2), Ahmedabad that assessee received accommodation entry from M/s Maruti Enterprises, who is a proven paper concern engaged in the activity of providing accommodation entries. Rs.1,55,55,450/- was received by assessee from the bank account of M/s Maruti Enterprises. However, the AO has not called for the bank account of assessee and has also not issued notice u/s 133(6) of the Act to the bank and obtained various details along with KYC. The AO has simply accepted the contention of assessee that LLP was not in existence during the relevant time and it had not received any accommodation entry. The acceptance of the submission of assessee by AO without proper enquiry has rendered the order erroneous as well as prejudicial to the interests of revenue. Thereafter, the Ld. PCIT has extracted provisions of section 263 and relied on various decisions of Hon’ble Courts and held that the order passed u/s 144 r.w.s. 147 of the Act was erroneous insofar as prejudicial to the interests of revenue. He set aside the assessment order and directed to AO to call for the bank account of the assessee and verify the alleged accommodation entry taken by assessee. He also directed AO to obtain bank account of M/s Maruti Enterprises and verify when the accommodation entry of Rs.1,55,55,450/-was given to the assessee. The Ld. PCIT accordingly set aside the assessment order with a direction to AO to framed fresh assessment order as per the discussion above after giving reasonable and sufficient opportunity of being heard to the assessee.

4. Aggrieved by the order of Ld. PCIT, the assessee filed appeal before the Tribunal. The Learned Authorized Representative (Ld. AR) filed two paper books containing various details and compilation of judgments. The Ld. AR submitted that revision is invalid as reopening of assessment u/s 147 as well as subsequent assessment order is unsustainable in law. He further submitted that action u/s 263 is also incorrect in law. He referred to various notices, manual ITR, letters and documents filed through e-mail with the AO and submitted that original assessment order passed by AO is invalid and void ab initio as it was passed on the non-existing entity i.e., the LLP which came into existences w.e.f. 22.06.2016 (after AY.2015-16). Moreover, revisionary order u/s 263 cannot be exercised against such order. For this, he relied on decisions in the case of Westlife Development Ltd. vs. PCIT, ITA No.688/Mum/2016 (Mumbai Trib.), Inder Kumar Bachani (HUF) vs. ITO, (2006) 10 TTJ 450 (Lucknow Trib.), Pioneer Distilleries Ltd. vs. PCIT (Pune Trib.) and Solvent Extraction Ltd. (2005) 276 ITR 154 (MP) (HC). He further submitted that no approval was obtained u/s 151 of the Act. The assessment was completed without providing reasons for reopening. The assessment was also completed without issue of notice u/s 143(2) of the Act. Further, assessment of LLP was reopened to verify transaction of partnership firm with M/s Maruti Enterprises. No addition was made on account of accommodation entries. However, assessment was completed on some other issue i.e., inability to pass manual assessment order under faceless scheme, which is not valid. The Ld. AR submitted that since the LLP came into existence on 22.06.2016, it was under no obligation to file return for AY.2015-16 and it was also not possible for the LLP to take accommodation entries of Rs.1,55,55,450/- from M/s Maruti Enterprises in FY.2014-15 (AY.2015-16). Further, no accommodation entries have been taken by the partnership firm. He also submitted that no order u/s 143(3) / 144 was passed and only processing u/s 143(1) was done by Central Procession Centre (CPC). Such order cannot be revised in view of the decision in case of Vikrant Crimpers, 282 ITR 503 (Gujarat).

4.1 The Ld. AR further submitted that invalid assessment cannot be revised u/s 263 of the Act. He stated that no notice u/s 143(2) was issued by AO. There was neither any show cause notice nor draft assessment order, which is mandatory requirement u/s 144B of the Act. Since no assessment order was there, the same cannot be revised [Enviro Control Pvt. Ltd. vs. NeAC, CA No.7370 of 2021, dated 29.03.2022 (Guj. HC)].

4.2 The Ld. AR further submitted that even if the order is valid for any reason, the AO has taken a possible view because manual assessment was not permissible in view of newly introduced section 144B(2) r.w.s. 144B(8) of the Act. He submitted that even though the assessment order passed is worded as passed u/s 144 r.w.s. 147, in fact there is no assessment order.

4.3 The Ld. AR further submitted that before holding the order of AO as erroneous and prejudicial to revenue, the Ld. PCIT should have conducted minimum enquiry because the AO did not undertake any enquiry. If the Ld. PCIT does not conduct the basic exercise, then he is not justified in setting aside the order of AO (Shree Narayan Tatu vs. ITO, in ITA No.2690/Mum/2016, dated 06.05.2016). The Ld. AR also submitted that as NFAC was unable to do manual assessment in the era of faceless scheme, the order of NFAC cannot be held to be erroneous and prejudicial to the interests of revenue. If such an order is revised, it would mean that there is an extension of limitation period provided under the law. The Ld. PCIT has no such power u/s 263 of the Act. He also submitted that the direction of the Ld. PCIT is not possible to execute because there is no material on record with regard to alleged accommodation entry of Rs.1,55,55,450/- by assessee LLP.

5. On the other hand, the Learned Commissioner of Income-tax – Departmental Representative (Ld. CIT-DR) supported the order of Ld. PCIT. He submitted that the registered firm was converted to LLP with all assets and liabilities. The ratio of partner’s capital in the firm and that in share capital of LLP are same. The AO has received credible information from ADIT (Inv.), Unit – 1(2), Ahmedabad. In the final report in case of Chiragkumar B. Patel & Ors., in STR No.10265868, M/s Maruti Enterprises provided accommodation entries to the assessee firm of Rs.1,55,55,450/-. The Ld. CIT-DR further submitted that it is a clear case of lack of enquiry because the reasons for reopening have not been enquired into by AO. He submitted that the evasion of income cannot be permitted because there was conversion of firm into LLP. He submitted that no adverse view has been taken by the Ld. PCIT and only direction has been given and what could not be done in the faceless assessment can now be done manually. He also submitted that both RF and LLP cannot continue to exist parallelly after conversion of RF to LLP.

6. In the rejoinder, the Ld. AR submitted that both RF and LLP are existing as on 07.04.2024, as per the IT Portal. He referred to section 170(1) and submitted that two assessments are possible i.e., in case of RF till the period of conversion and in case of LLP after conversion up to 31.03.2015. The Ld. AR also referred to section 170(2) and 188 of the Act and submitted that revision u/s 263 of the Act was invalid.

7. We have heard rival submissions of both the parties and perused the material available on record. We have also deliberated the case laws relied upon by the Ld. AR. Though, the appellant has raised a single ground, it includes issue of jurisdiction as well as merit of the order u/s 263. It has been contended that revision u/s 263 is invalid because reopening of assessment as well as subsequent assessment order are unsustainable in law. Since jurisdictional issue has been raised, it would be proper to discuss and decide the same before proceeding to decide the issue on merit. The Ld. AR submitted that proceedings u/s 263 of the Act is invalid because reopening and completion of assessment u/s 147 r.w.s. 144 & 144B of the Act are not valid. He submitted that original assessment order passed by AO is invalid and void ab initio as it was passed upon a non-existing entity. The assessee LLP came into existence w.e.f 22.06.2016, which was after AY.2015-16. Therefore, revisionary jurisdiction u/s 263 cannot be exercised against such an order. The Ld. AR further submitted that no approval u/s 151 was obtained to issue notice u/s 148. The assessment is also not valid because no notice u/s 143(2) was issued.

7.1 It would be proper to discussed briefly the background of the case before deciding the jurisdictional issue. The assessee LLP, Shree Nilkanth Quarry Works LLP (PAN – AADFS1455J) was incorporated on 22.06.2016. Hence, it could not have filed return of income for AY.2015-16. However, Shree Nilkanth Quarry Works (partnership firm) having PAN – ACEFS8574R had filed return of income on 30.09.2015 declaring total income at Rs.57,43,190/-. The partnership firm was converted into LLP w.e.f. 04.07.2016 wherein all the assets and liabilities of the partnership firm were taken away by the LLP As per the LLP agreement dated 04.07.2016, all the three partners of M/s Shree Nilkanth Quarry Works decided to convert the erstwhile partnership firm into LLP to carry on the business. Pursuant to the consent and approval of the then partners and of the concerned regulatory authority on 22.06.2016, the erstwhile partnership firm was converted into LLP and was incorporated as M/s Shree Nilkanth Quarry Works LLP (assessee herein). The share of the partners of total paid of capital in the erstwhile partnership firm was carried forward into the LLP and was deemed to be the initial capital contribution from the partners of the LLP. All the assets and liabilities of the erstwhile partnership firm were taken over by the LLP. It is the contention of the Ld. AR that the partnership firm continued even after formation of the LLP. Therefore, notice u/s 148 could not have been issued upon the non-existing LLP for AY.2015-16. With this background, let us examine the basic features and conditions of conversion of a partnership firm into LLP.

7.2 The conversion of a partnership firm to LLP is done as per section 55 of Limited Liability Partnership Act, 2008 r.w. Schedule II of the Act. All the partners of the firm shall be the partners of the LLP, which means that there will be no new partners or the existing partners cannot cease to be partners while making the application. The partnership firm to be converted must be registered under the Partnership Act, 1932. Consent of all the partners must be obtained. The LLP must have the same partners as that of the partnership firm. Any partner who wishes to be removed from the LLP may be removed after the conversion is completed. An LLP shall come into existence by the name stated in the certificate of registration. All the assets, liabilities, rights and privileges which vested in the firm shall vest in the LLP. The firm shall stand dissolved, and if it was registered under the India Partnership Act, 1932, it shall be removed from the records maintains. All proceedings which were pending against the firm may be enforced against the LLP. Any order or judgment either in favour or against the firm may also be enforced against the LLP. All existing contracts and agreements in which the firm was a party shall continue to be enforced with the LLP as the party. Every existing appointment of the firm or authority conferred on the firm shall be as if it were conferred upon the LLP.

7.3 It is clear from the scheme of the things in respect of conversion of partnership firm into LLP that in effect and substance, the partnership firm ceases to exist after conversion of the firm into LLP. All liabilities which otherwise would have been discharged by the erstwhile firm would have to be discharged by the newly incorporated LLP. Since the partnership firm lost its existence upon its conversion into LLP, the AO could not have issued any notice in the name of the non-existing firm, which no longer was a “person u/s 2(31) of the Act. Therefore, the AO has rightly issued notice u/s 148 on the LLP because all assets and liabilities were taken over by the LLP. The Hon’ble Supreme Court in case of PCIT vs. Maruti Suzuki India Ltd., 416 ITR 613 (SC) has held that where assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity, would be without jurisdiction and was to be set aside. The Hon’ble jurisdictional High Court in case of Adani Wilmar Ltd. vs. ACIT, 456 ITR 552 (Guj.) has held that where a company was amalgamated with petitioner-company and petitioners sent intimations to department about said amalgamation, issuance of show-cause notice in name of non-existing company which was amalgamated with petitioner-company and lost its existence was without jurisdiction and same was to be quashed. Again, in Adani Estate Management (P.) Ltd. vs. ITO, 456 ITR 560 (Guj.), it was held that where a company was amalgamated with assessee-company and same was intimated to Assessing Officer, reopening notice issued in name of erstwhile company which was amalgamated with assessee-company was to be quashed. The ratio of the above decisions is clearly applicable to the facts of the present case. After conversion of the firm into LLP, the LLP lost its existence. It has been informed by the revenue that the erstwhile firm filed its last return for AY.2016-17 and subsequently only LLP has filed the returns. This has been done by the erstwhile firm because the LLP was incorporated on 22.06.2016 and the LLP agreement was entered into on 24.07.2016. Therefore, the notice u/s 148 dated 30.03.2021 could not have been issued in the name of the non-existing entity, which was not a ‘person’ u/s 2(31) of the Act. In view of the above and respectfully following the decisions cited supra, we do not find any infirmity in issuance of notice u/s 148 of the Act by the AO in the name of the LLP.

8. The next issue is validity of reopening on the ground that no approval u/s 151 was obtained by AO before issuing notice u/s 148 of the Act. The assessment is also invalid because it was completed without issuing notice u/s 143(2) of the Act. Further, no addition was made on account of transactions of the partnership firm with Maruti Enterprises, which was the reason for reopening. Hence, the order of AO was not amenable to proceedings u/s 263 of the Act.

9. We have carefully gone through the records. We find that the case was processed u/s 143(1) and no assessment u/s 143(3) was completed. The AO received report of ADIT(Inv.), Unit – 1(2), Ahmedabad vide letter dated 17.09.2018. The final report of FIU-IND in case of Chiragkumar B. Patel and Ors., in STR No.10265868, was also received by AO. The factum of transactions of Rs.1,55,55,450/- with Maruti Enterprises was mentioned in the said report. M/s Maruti Enterprise was providing accommodation entries during the year under consideration. Hence, the AO had credible information regarding escapement of income which necessitated action u/s 147 of the Act. It has been held in a number of cases that there should be prima facie reason at the initial stage of reopening. The sufficiency or correctness of the reason cannot be examined at the threshold. The conclusion or conclusive establishment of escaped income is not required while drawing satisfaction regarding reopening of the assessment. Useful reference may be made to the decision of the Hon’ble Supreme Court in case of Raymond Woollen Mills Ltd. vs Income-Tax Officer and Ors., 236 ITR 34 (SC), wherein it was held as under:

“3. In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to costs.”

9.1 The Hon’ble Supreme Court in case of ACIT vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. 291 ITR 500 held that the expression “reason to believe” would mean cause or justification and cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. Whether material would conclusively prove escapement of income is not the concern at that stage.

9.2 The Hon’ble Gujarat High Court in the case of Sajani Jewels vs. DCIT, 71 taxmann.com 90 held that in view of sufficient prima facie material on record to show that assessee had made bogus purchases through web of entities created by Bhanwarlal Jain, initiation of reassessment by Assessing Officer was justified.

9.3 The Hon’ble Gujarat High Court in the case of Pushpak Bullion vs. DCIT, 85 taxmann.com 84 has held that where Investigation Wing of the department during course of investigation of a third party found that he was indulged in providing accommodation entries and bogus bills, and assessee had made sizable purchases from him, reopening notice against the assessee was valid.

9.4 The Hon’ble Gujarat High Court in case of Peass Industrial Engineers Pvt. Ltd. vs. DCIT, 73 taxmann.com 185 has held that where after scrutiny assessment, Assessing Officer received information from Investigation Wing that two well-known entry operators of the country provided bogus entries to various beneficiaries, and assessee was one of such beneficiaries, Assessing Officer was justified in reopening assessment.

9.5 There is no reason as to why the ratio of the above decisions would not be applicable to the facts of the present appeal. We have gone through the reasons recorded by the Assessing Officer and having gone through the entire gamut of facts and circumstances, we are of considered opinion that not only there existed new information with the Assessing Officer from the credible sources, but also that he has applied his mind that what was disclosed in the return of income was not true. We have only to see whether there was prima facie same material on the basis of which Assessing Officer could reopen the case. Such condition is eminently visible in the present case, as the assessee had transactions worth Rs.1,55,55,450/- with an established accommodation entry provider, namely, M/s Maruti Enterprise. Therefore, argument of Ld.AR that reassessment proceeding was not valid is not acceptable. There was prima facie some material based on which AO reopened the assessment. The decision of Hon’ble Supreme Court in case of Raymond Woollen Mills Ltd. (supra) and Rajesh Jhaveri Stock Brokers Pvt. Ltd. (supra) supported the action of the AO. Hence, the argument of the Ld. AR is not tenable and the same is rejected.

10. The next issue raised by the Ld. AR is that no approval u/s 151 was obtained by the AO before issuing notice u/s 148 of the Act. We have called for the record and examined the same. We find that the AO had sent “Form for recording the reasons for initiation of proceedings u/s 147 and for obtaining the approval of the Addl./Joint CIT” on 27.03.2021. The Addl. CIT, Navsari Range, Navsari has given the approval on 30.03.2021. Hence, the contention of the Ld. AR is factually incorrect.

11. The next issue is completion of the assessment without issue of notice u/s 143(2). It is seen from the assessment order that there is no mention about issue of notice u/s 143(2). The Ld. CIT-DR has also not controverted the assertion of the Ld. AR that no notice u/s 143(2) was issued by the AO. The revenue was asked to verify the record and confirmed if any notice u/s 143(2) was issued by the AO. They have not confirmed about issuance of the said notice. Hence, it is clear that the order was passed without issue of notice u/s 143(2). As argued by the Ld. AR, the reassessment order passed without issue of notice u/s 143(2) of the Act is not valid. For this, he has relied on the decision in case of DCIT vs. Mahi Valley Hotels and Resorts, 287 ITR 360 (Guj.). From the facts discussed above, we find that no notice u/s 143(2) was issued by AO. The Hon’ble jurisdictional High Court in the case of Mahi Valley Hotels and Resorts (supra) has held that where notice u/s 143(2) was issued beyond statutory period, Tribunal was justified that assessment was void ab initio. The case of the appellant is stronger because notice u/s 143(2) has not at all been issued to the assessee. The Hon’ble Delhi High Court in case of PCIT vs. Silver Line, 383 ITR 455 (Del.) held that merely because assessee participated in proceedings pursuant to notice u/s 148, it would not obviate mandatory requirement of AO to issue assessee a notice u/s 143(2) before finalizing order of reassessment. It upheld the decision of the Tribunal that the reassessment order in question was legally unsustainable. The Hon’ble Supreme Court in case of ACIT vs. Hotel Blue Moon, 321 ITR 362 (SC) held that if an assessment is to be completed u/s 143(2) r.w.s. 158BC, notice u/s 143(2) should be issued within one year from filing of the block return. Omission on part of AO to issue notice u/s 143(2) cannot be a procedural irregularity and the same is not curable. The requirement of notice u/s 143(2) cannot be dispensed with. The Hon’ble Patna High Court in case of CIT vs. Nagendra Prasad, (2023) 156 taxmann.com 19 (Pat.) held that where notice was issued by AO u/s 148 requiring assessee to file a return within thirty days but return was filed after eight and a half months, since return was filed by assessee in response to said notice through delayed, there should have been a notice issued u/s 143(2) as requirement to issue notice could not be dispenses with. The appeal of the revenue was dismissed. Following the above decisions, we hold that the reassessment order u/s 147 of the Act is null and void in absence notice u/s 143(2) of the Act.

12. Since the impugned order of the AO has been held to be invalid, the question that arises is whether the action of the Ld. PCIT u/s 263 of the Act could be sustained. The Ld. AR has argued that proceedings u/s 263 of the Act is invalid because reopening u/s 147 as well as subsequent assessment order is unsustainable in law. We have upheld validity of the reopening but held that the order passed u/s 147 r.w.s. 144 & 144B of the Act is unsustainable. Since the order u/s 147 of the Act itself, is not valid, any revision order u/s 263 cannot be sustained. In order to assume jurisdiction u/s 263 of the Act, the primary condition is that the order passed by the AO should be erroneous insofar as it is prejudicial to the interests of revenue. Therefore, existence of a valid order is the condition precedent for assumption of jurisdiction by the Ld. PCIT u/s 263 of the Act. An invalid order cannot be said to be an order in the eyes of law. When there is no order in the first instance, there is no question of invoking provisions of section 263 of the Act. The ITAT, Cuttack in case of S. S. Brahma Education Trust vs. PCIT, ITA No.107/CTK/2024 held that during the appellate proceedings against order passed u/s 263 of the Act, the legality of order passed u/s 147 of the Act, from which such proceedings have been originated, could be examined. The Tribunal referred to the decision of the ITAT, Mumbai in case of Westlife Development Ltd., (2016) 49 ITR (T) 406 (Mum) wherein it was held that if the order passed in the original proceeding itself is illegal, then that cannot give rise to valid revision proceedings. Validity of the order passed in the primary (original) proceedings should be examined even at subsequent stages, only for the limited purpose of examining whether the collateral (subsequent) proceedings have been initiated on a valid legal platform or not. At para 15 of the order the Tribunal held that since the order passed u/s 147 r.w.s. 144 & 144B of the Act is an invalid, any further proceedings originated from the said order cannot be held as valid proceedings, which includes the revisionary proceedings initiated by the Ld. PCIT. The facts of the instant appeal are similar. There is no reason to differ from decision of the ITAT, Cuttack cited supra. Hence, the revision order passed u/s 263 of the Act is quashed.

13. The Ld. AR also submitted on various other jurisdictional issues and merit of the case. Since we have quashed the order u/s 263 of the Act, those issues are academic in nature and do not require adjudication.

14. In the result, the appeal of the assessee is allowed.

Order is pronounced on 09/10/2024 in the open court.