Income Tax Act  whether the assessment order passed under section 148 is valid in the absence of issue of notice us 1432 of the Act  assessee claims that the assessment order passed under section 1481433 of the Act under appeal is bad in law ITO neither issued nor served of statutory notice under section 1432 of the Act is prone to be declared as bad in law  HELD  the CPIO observed that the assessee did not file return in compliance to notice issued us 148 of the Act  AO has clearly stated in the assessment order that the assessee has filed return on 31032017 in response to notice issued us 148 dated 27032017  The copies of acknowledgement of returns filed also clearly establishes the fact of assessee filing return for the year under consideration originally on 31032017  The CPIO also admitted the fact that no notice has been issued us 1432 in assessees case for the AY under consideration  As regards the notice us 1432 since notice us 1432 was not issued within the period prescribed for the purpose jurisdiction assumed by the AO us 1433 of the Act was erroneous  the assessment order passed by the AO us 148 read with Section 1433 is void ab initio and bad in law  quashing the reassessment order the grounds raised by the assessee is allowed nbsp 2022VIL1096ITATDEL nbsp IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH DB NEW DELHI nbsp ITA NO5080DEL2018 ASSESSMENT YEAR 201516 nbsp DATE OF HEARING 07062022 PRONOUNCEMENT ON 29082022 nbsp RAJPAL nbsp Vs nbsp ITO nbsp ASSESSEE BY SHRI KK JUNEJA ADV REVENUE BY SHRI NC UPADHYAYA SR DR nbsp BEFORE SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER SHRI CHALLA NAGENDRA PRASAD JUDICIAL MEMBER nbsp O R D E R nbsp PER CN PRASAD JM nbsp This appeal is filed by the assessee against the order of the Ld Commissioner of Income Tax Appeals Dehradun dated 21052018 for the AY 201516 nbsp 2 The assessee in its appeal challenged the order of the Ld CITAppeals in denying the claim for deduction us 54B of the Act The assessee also filed additional grounds of appeal challenging the very jurisdiction of the Assessing Officer in passing the assessment order us 148 read with section 1433 of the Act The Ld Counsel for the assessee submits that the additional ground was filed challenging the very jurisdiction of the Assessing Officer in passing the assessment order as there was neither issue nor service of statutory notice us 1432 of the Act and thereby rendering the assessment order passed by the Assessing Officer us 148 read with section 1433 of the Act as bad in law nbsp 3 The Ld Counsel further submits that in the additional grounds the assessee also challenged the jurisdiction of the Assessing Officer in initiating the 147 proceedings and issue of notice us 148 by non jurisdictional Assessing Officer The Ld Counsel submits that since these additional grounds are purely legal grounds and going to the root of the matter the same may be admitted and adjudicated upon Reliance was placed on the decision of the Honble Supreme Court in the case of National Thermal Power Company Limited vs CIT 229 ITR 383 nbsp 4 Heard rival submissions on admission of additional grounds The additional grounds filed by the assessee are as under  nbsp 1 That in fact and circumstances of the case recording of the reasons of escaped income to the extent of Rs3867000 by the Non Jurisdictional ITO initiation of proceeding us 147 and issuance of notice us 148 on the sole basis of information received from registrar that appellant had sold the land is illegal without jurisdiction and voidabinitio nbsp 2 That in fact and circumstances of the case the reasons are recorded merely on basis of information and in the absence of Independent application of mind neither the LdCITA applied his mind but in a ordinary mechanical way signed the approval is unjustified and bad in law nbsp 3 That the assessment order passed under section 1481433 of the Act under appeal is bad in law ITO neither issue nor served of statutory notice under section 1432 of the Act is prone to be declared as bad in law and liable to be quashed nbsp 5 In the additional grounds filed by the assessee the assessee challenged the very jurisdiction of the Assessing Officer in passing the assessment order us 148 read with Section 1433 of the Act in the absence of issue or service of notice us 1432 of the Act Assessee also raised additional ground challenging the very initiation of proceedings us 147 and issue of notice us 148 of the Act by the non jurisdictional Assessing Officer These two additional grounds raised by the assessee goes to the root of the matter and are purely legal grounds Respectfully following the decision of the Honble Supreme Court in the case of National Thermal Power Company Limited supra we admit the above additional grounds nbsp 6 It is the contention of the Ld Counsel for the assessee that the mandatory issue and service of notice us 1432 was not complied with by the Revenue before completion of assessment us 148 read with Section 1433 of the Act for the assessment year under consideration The Ld Counsel for the assessee at the time of hearing furnished copy of order dated 03062022 issued by the CPIO in response to RTI application made by the assessee as to whether any notice us 1432 was issued if issued how and when it was served on the assessee Referring to the order passed by the CPIO Dehradun the Ld Counsel submits that the CPIO had made it very clear that in the case of the assessee notice us 1432 was not issued as the assessee did not file return for AY 201516 in compliance to the notice issued us 148 dated 27032017 The Ld Counsel for the assessee submits that the observation of the CPIO that the assessee did not file return in response to notice us 148 is misplaced and contrary to the record and the findings of the Assessing Officer in the assessment order The Ld Counsel referring to page 2 para vi of the assessment order it is submitted that the Assessing Officer has given a finding that in compliance to notice issued us 148 dated 27032017 the assessee first filed his return of income in ITR  4S on 31032017 and after acknowledging the reason for initiation of action us 147 of the Act the assessee revised his return on 11102017 The Ld Counsel for the assessee therefore submits that the observation of the CPIO that the assessee did not file return in response to notice us 148 is misplaced Ld Counsel also referred to the copy of acknowledgement of the return filed for the AY 201516 on 31032017 and revised on 11102017 which was placed on record nbsp 7 The Ld Counsel placing reliance on the decision of the Honble Delhi High Court in the case of Pr CIT vs Consortium Nussli Comfort Net in ITA 632022 dated 25032022 submits that in the absence of mandatory issue of statutory notice us 1432 of the Act the assessment made is null and void nbsp 8 On the other hand the Ld DR submits that in the instant case since the assessee had not submitted any reply in response to the notice us 148 dated 27032017 within 30 days from the service of notice or a return in the prescribed form for the assessment year under consideration provisions of section 1432 could not be invoked nbsp 9 Heard rival submissions perused the orders of the authorities below and the record placed before us In the order passed by the CPIO dated 03062022 in response to RTI application made by the assessee the CPIO stated as under nbsp 1 Notice us 1432 in the case of the assessee ie Sri Rajpal Ro H1 Dhakowala Ambari Dehradun was not issued as the assessee did not submit his return of income for AY 201516 in compliance to the notice issued us 148 dated 27032017 In the absence of submission of ITR no notice us 1432 can be issued For the sake of clarity the relevant portion of section 1432 is reproduced as under nbsp Section 1432 of the IT Act 1961 Where a return has been furnished under section 139 or in response to a notice under section 1421 the Assessing Officer or the prescribed income tax authority as the case may be if considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed the excessive loss or has not paid the tax in any manner shall serve on the assessee a notice requiring him on a date to be specified therein either to attend the office of the AO any evidence on which the assessee may rely in support of the return nbsp 10 As could be seen from the above the CPIO observed that the assessee did not file return in compliance to notice issued us 148 of the Act However the Assessing Officer has clearly stated in the assessment order that the assessee has filed return on 31032017 in response to notice issued us 148 dated 27032017 The relevant observations are as under  nbsp After acknowledging the reason of initiation of action us 147 the assessee revised his return dated 31032017 on 11102017 In compliance to this office notice issued us 148 dated 27032017 assessee first filed his return of income in ITR  4S on 31032017 without declaring results of capital gain income and also no claim of exemption has been made by the assessee in this return of income Later on after acknowledging that the Revenue has incriminating information regarding his sales and purchases of immovable properties assessee revised his return of income and ITR4 on 11102017 for assessment year under consideration screenshot of the same is being placed nbsp 11 The copies of acknowledgement of returns filed before us also clearly establishes the fact of assessee filing return for the year under consideration originally on 31032017 The CPIO also admitted the fact that no notice has been issued us 1432 in assessees case for the assessment year under consideration nbsp 12 The issue as to whether the assessment is valid in the absence of issue of notice us 1432 of the Act came up for consideration before the Honble Delhi High Court in the case of Pr CIT vs Ms Consortium Nussli Comfort Net supra and the Honble Delhi High Court considering the decision of the Honble Supreme Court in the case of CIT Vs Laxman Das Khandelwal 417 ITR 325 and also various other decisions held that since notice us 1432 was not issued within the period prescribed for the purpose jurisdiction assumed by the Assessing Officer us 1433 of the Act was erroneous While holding so the Honble Delhi High Court held as under  nbsp 2 Ld Counsel for the appellant states that the respondentassessee had appeared and cooperated in the assessment proceedings and had not raised any objection about nonservice of notice under section 1432 of the Income Tax Act 1961 hereinafter referred to as the Act during the entire assessment proceedings and therefore the assessee was precluded from taking any objection that the notice was not issued in time in accordance with Section 292BB of the Act nbsp 3 Ld Counsel for the appellant states that the Tribunal has erred in ignoring Section 1243 of the Act which mandates that issue regarding jurisdiction of Assessing Officer cannot be challenged after one month from issuance of notice under section 1432 of the Act or after completion of assessment proceedings whichever is earlier nbsp 4 He also submits that Section 292BB has been interpreted by the Apex Court recently in Commissioner of IncomeTax Vs Laxman Das Khandelwal 2019 417 ITR 325 SC wherein it has been held as under  nbsp 9 According to section 292BB of the Act if the assessee had participated in the proceedings by way of legal fiction notice would be deemed to be valid even if there be infractions as detailed in the said section The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on the part of the assessee It is however to be noted that the section 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 nbsp 5 Since the present appeal primarily deals with interpretation of Section 292BB of the Act the same is reproduced herein below  nbsp 292BB Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment it shall be deemed that any notice under any provision of this Act which is required to be served upon him has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was nbsp a not served upon him or nbsp b not served upon him in time or nbsp c served upon him in an improper manner nbsp Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment nbsp 6 This Court is in agreement with the Tribunal that Section 292BB does not give the power to condone the failure or delay in issuing the statutory notice required to be issued under Section 1432 of the Act Section 292BB deals with failure of service of notice and not with regard to failure to issue notice CIT vs Rajeev Sharma 2011 336 ITR 678 All HC CIT vs Ponorama Builders P Ltd 2014 224 Taxman 203 Gujarat MAG and CIT vs Salarpur Cold Storage P Ltd 2014 50 taxmancom 105 Allahabad nbsp 7 The Supreme Court in Commissioner of Income Tax vs Laxman Das Khandelwal supra has clearly stated that the scope of Section 292BB is to make service of notice having certain infirmities to be proper and valid However the Section 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 In fact a Division Bench of this Court in Pr Commissioner of Income tax Vs Shri Jai Shiv Shankar Traders P Ltd 2015 64 taxmanncom 220 Delhi has categorically held that the failure of the AO in reassessment proceedings to issue notice under Section 1432 of the Act prior to finalizing the reassessment order cannot be condoned by referring to Section 292BB of the Act The relevant portion of the said judgment reads as under nbsp Section 292BB would apply insofar as failure of service of notice was concerned and not with regard to failure to issue noticeThe resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under section 1432 of the Act subsequent to 16th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act is fatal to the order of reassessment nbsp 8 Therefore on the basis of admitted fact that notice under Section 1432 of the Act was not issued within the period of six months prescribed for the purpose jurisdiction assumed by the Assessing Officer under Section 1433 of the Act was assumed erroneously nbsp 9 Further it is settled law that the issue of jurisdiction goes to the roots of the cause and such an issue can be raised at any belated stage of the proceeding including appeal Kanwar Singh Saini vs High Court of Delhi 2012 4 SCC 307 and Ms Mavany Brothers vs CIT 2015 SCC Online Bom 1686 nbsp 10 Consequently this Court is of the view that no substantial question of law arises for consideration in the present appeal Accordingly the present appeal is dismissed nbsp 13 Ratio of the decision of the Delhi High Court supra squarely applies to the facts of the assessees case Thus respectfully following the above decision we hold that the assessment order passed by the Assessing Officer us 148 read with Section 1433 is void ab initio and bad in law Accordingly we quash the reassessment order passed by the Assessing Officer Ground no 3 of additional grounds raised by the assessee is allowed nbsp 14 Since we have decided the additional ground in favour of the assessee we are not inclined to decide other regular grounds and also ground no 1 and 2 of additional grounds as they become only academic at this stage nbsp 15 In the result the appeal of the assessee is allowed as indicated above nbsp Order pronounced in the open court on 29082022 nbsp DISCLAIMER Though all efforts have been made to reproduce the order accurately and correctly however the access usage and circulation is subject to the condition that publisher is not responsibleliable for any loss or damage caused to anyone due to any mistakeerroromissions