JCIT Vs ACE Mega Structure Pvt. Ltd. (ITAT Delhi)
ITAT Delhi held that provisions of section 292BB of the Income tax Act doesn’t cure complete absence of notice. Section seeks to cure only the manner of service of notice.
Facts- ACE Group of Companies is presently engaged in various businesses of real estate and development in Noida and Greater Noida. M/s. ACE Mega Structure Pvt. Ltd is one of the group companies. During the course of search in the case of M/s. Crest Promoters Pvt. Ltd. various incriminating documents were found and seized. Consequently, a survey u/s. 133A of the Income Tax Act was conducted at the business premises of the assessee company.
E-return in this case has been filed by the assessee on 25.09.2015 declaring total income of Rs.38,96,010/-. Subsequently, notice u/s 143(2) of the Act was issued on 07.10.2016. CIT(A) annulled the assessment.
Conclusion- Section 292BB does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.
Held that it is an undisputed fact that the notice has been issued after the due date, accordingly, we decline to interfere with the order of the ld. CIT(A).
FULL TEXT OF THE ORDER OF ITAT DELHI
The present appeal and Cross Objection have been filed by the Revenue and the assessee against the order of the ld. CIT(A)-IV, Kanpur dated 07.02.2019.
2. Following grounds have been raised by the Revenue:
“1. Whether on facts and circumstances of the case and law, the Ld. CIT (A) erred in law while holding that there the notice u/s 143(2) of the Act was not issued within 6 months from the end of financial year in which return is furnished ignoring the fact that in the search cases, notice u/s 143(2) is issued only after filing of return in response to notice u/s 153 A/153C/142(1) of the Act.
2. Whether on facts and circumstances of the case and in law, the Ld. CIT (A) erred in law while holding that issue of notice u/s 143(2) within time limit was mandatory in case of return filed u/s 153A in pursuance to initiation of search u/s 132(1) without appreciating that there was no such requirement of law u/s 153A.
3. That CIT (A) failed to follow the binding decision of Hon’ble Delhi High Court in case of Ashok Chaddha vs ITO 337 ITR 399 as well as decision of Hon’ble ITAT Delhi in case of Roshan Lai Verma vs DCIT in 1TA No. 1934/Del/2015 wherein it has been held that it is not mandatory to issue notice u/s 143(2) within 6 months, if return was filed u/s 153A.
4. That CIT (A) incorrectly relied upon the decision of courts which were distinguishable as they pertained to Return of Income filed u/s 139(1) or 148 or 158BC and not u/s 153A which is materially different.
5. On the facts and circumstances of the case and in law, the CIT (A) failed to allude to the relevant facts & circumstances and misread the provisions of 153 A to arrive at the conclusion. The order of the CIT (A) therefore suffers from perversity in view of the ratio of decision in case of Vijay Kumar Talwar 330 ITR 1 (SC), Sudarshan Silk Sarees 300 ITR 205 (SC).”
3. A search & seizure operation u/s 132 of the Income Tax Act, 1961 was conducted on 04.07.2014 on the premises of the assessee comprising ACE Group of cases. The group popularly known as ‘ACE Group of Companies’ is presently engaged in various businesses of real estate & development in Noida and Greater Noida. M/s ACE Mega Structure Pvt. Ltd. is one of the group companies. During the course of search at Plot No. 1, Sector No. 1, Greater Noida, in the case of M/s Crest Promoters Pvt. Ltd., various incriminating documents were found and seized. Consequently, survey u/s 133A of the Act was conducted at the business premises of the assessee company at B-47, Surya Nagar, Ghaziabad.
4. In view of search operation, the group cases were centralized to Central Circle, Noida. The jurisdiction order u/s 127 of the Income Tax Act, 1961 in this, was passed by the ld. PCIT, Ghaziabad communicated vide F.No. Pr. CIT-GZB/ITO(T)/Transfer/2015-16/3543 dated 22.02.2016.
5. E-return in this case has been filed by the assessee on 25.09.2015 declaring total income of Rs.38,96,010/-. Subsequently, notice u/s 143(2) of the Act was issued on 07.10.2016.
6. Thus, the two pertinent facts emerge,
