AFR Reserved on 30.03.2017 Delivered on 28.07.2017 Court No. 3 1. Case : INCOME TAX APPEAL No. 168 of 2009 Appellant : Commissioner Of Income Tax (Central) Kanpur Respondent : Sri Moins Iqbal Cantt Road Lucknow Counsel for Appellant : D.D.Chopra,Mr. Sidharth Dhaon, Alok Mathur Counsel for Respondent : Mudit Agarwal 2. Case : INCOME TAX APPEAL No. 169 of 2009 Appellant : Commissioner Of Income Tax (Central) Kanpur Respondent : Sri Siraj Iqbal Cantt Road Lucknow Counsel for Appellant : D.D.Chopra,Mr. Sidharth Dhaon, Alok Mathur Counsel for Respondent : Mudit Agarwal Hon'ble Sudhir Agarwal,J. Hon'ble Ravindra Nath Mishra II,J. (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Income Tax Appeal (hereinafter referred to as "ITA") No. 169 of 2009 under Section 260A of Income Tax Act, 1961 (hereinafter referred to as "Act, 1961") has been filed by Commissioner of Income Tax (Central), Kanpur (hereinafter referred to as "Revenue") aggrieved by judgment and order dated 30.06.2009 passed by Income Tax Appellate Tribunal, Lucknow Bench 'A', Lucknow (hereinafter referred to as "Tribunal") in ITA No. 283/Luc/2009 relating to Assessment Year 2006 07. Tribunal has dismissed appeal preferred by Assessee and confirmed judgment of Commissioner of Income Tax (Appeals) (hereinafter referred to as "CIT(A)") holding that for Assessment Year under consideration, Assessing Officer (hereinafter referred to as "AO") has no jurisdiction to pass order under Section 153A of Act, 1961. In taking above view Tribunal has followed its earlier judgment dated 29.05.2009 passed in ITA No. 232/Luc/2009, relating to Assessment Year 2006 07, which is subject matter of challenge in ITA No. 168 of 2009. 2 2. In both these appeals three substantial questions of law have been formulated by this Court while admitting same and since they are common hence substantial questions of law formulated in ITA No. 168 of 2009 are hereby quoted as under: "I. Whether on facts and circumstances of case, Income Tax Appellate Tribunal was justified in dismissing appeal of Revenue by ignoring fact that merely quoting wrong section will not render assessment order ab initio void and that such mention of wrong section is defect curable u/s 292B of I.T. Act, 1961. II. Whether on facts and circumstances of case, Income Tax Appellate Tribunal was justified in dismissing appeal of Revenue by holding that assessment order was passed u/s 153A of Act, ignoring fact that assessment was completed u/s 143(3)/153A after issuing notice u/s 142(1) of I.T. Act, 1961 in compliance of which assessee furnished return of income for A.Y. 2006 07 without objecting to jurisdiction of Assessing Officer. III. Whether on facts and circumstances of case, Income Tax Appellate Tribunal was justified in dismissing appeal of Revenue by ignoring relevant provision of Section 153B(1)(b) where time limit for completion of search assessment for current year i.e. assessment year relevant for previous year in which search is conducted, is laid down which clearly shows that authority to assess or re assess total income of current assessment year, is also derived from provisions of Section 153A of I.T. Act, 1961." 3. facts in brief giving rise to ITA No. 168 of 2009 are as under. 4. Search and seizure operation under Section 132 of Act, 1961 was conducted on 10.11.2005 at premises of Sri Siraj Iqbal and Suhail Ahmad, to search residential premises at House No. 118/86 Kha, Cantt. Road, Lucknow in which Assessee, Monis Iqbal is also residing. 3 Simultaneously, survey under Section 133A was also carried on 10.11.2005 in premises of M/s F.I. Builders, M/s Azad Educational Society and M/s F.I. Hospital. 5. Assessee, Monis Iqbal being Director of M/s F.I. Builders (P) Ltd. was enjoying salary income from Company. He was also engaged in trading of readymade garments under Section 44AF of Act, 1961. Notice under Section 153C of Act, 1961 was served on Assessee on 05.01.2007. Return of income for Assessment Year 2006 07 was filed by Assessee showing income of Rs. 62,250/ . Questionnaire in form of notice under Section 142(1) of Act, 1961 was issued to Assessee on 06.11.2007 and served on 22.11.2007. For compliance, date was fixed on 04.12.2007. Thereafter show cause notice was served on Assessee on 13.12.2007. Assessment was completed on 28.12.2007 computing total income at Rs. 8,93,210/ . In assessment order, in column for "Section under which order is passed" Assessing Officer wrote Sections 143(3)/153A. 6. Aggrieved by assessment order, Assessee preferred appeal before CIT(A). Appeal was allowed vide order dated 04.02.2009 on ground that assessment order was wrongly passed under Section 153A though it should have been under Section 143(3). Thereagainst Revenue preferred appeal before Tribunal but same has been dismissed vide impugned judgment dated 29.05.2009. Findings of Tribunal while dismissing appeal, contained in paras 16, 17 and 18, are as under: "16. After careful consideration of rival submission and facts and circumstances of case and various decisions including decision referred to by Ld. D.R., we are of opinion that so far as jurisdiction to proceed for making assessment under section 153A read with section 153C is concerned, same is quite different than requirement of issuance of notice under Section 143(2) of Act. provisions of section 153A read with section 4 153C empower AO to proceed with assessment in search cases mentioned therein meaning thereby that AO gets jurisdiction to proceed for making assessment in search cases covered by these provisions, whereas provisions of section 143(2) subject to limitation provided under proviso to sub section require AO to give assessee opportunity to support its return, before making of assessment under section 143(3)/144 as case may be. In other words, jurisdiction to make assessment under section 143(3) is gathered by AO just after furnishing return of income by assessee under section 139 or on issuance and service of notice under section 142(1) requiring assessee to furnish return of income or on notice issued under section 148 of Act, meaning thereby that provisions of section 143(2) of Act did not give jurisdiction to make assessment under Section 143(3) but make it obligatory to comply with these provisions before making assessment under section 143(3) or section 144 as case may be. In view of this difference between purpose and result of taking recourse to provisions of section 153A read with section 153C on one hand and issuance of notice under section 143(2) of Act on other hand, we are unable to accept plea advanced by Ld. D.R. 17. Coming to merits of case, we, after having considered provisions of section 153A, 153B and 153C, are of opinion that though provisions 153B(1)(b) provide limitation for completing assessment for assessment year relevant to previous year in which search is conducted under section 132 or requisition is made under section 132A of Act, but there being no provision as to under which provision of law, assessee can be called upon to furnish its return for that assessment year only under provisions of section 139 and it is only in case of failure of 5 assessee to furnish return under section 139 that AO can call for return of income for that previous year either under section 142(1) or under section 147 of Act, as case may be, and if it is so, then assessment of assessment year relevant to that previous year can be made only under section 143(1) or 143(3) or 144 or 147 of Act but cannot be made under section 153A of Act. 18. In view of above discussion and reasons stated by CIT(A), we are of opinion that CIT(A) was quite justified in holding that for assessment year under consideration, AO had no jurisdiction to pass order under section 153A of Act. order of CIT(A) is, therefore, upheld." (emphasis added) 7. Learned counsel for Revenue contended that Assessment order mentions two sections, i.e., 143(3)/153A. He submitted that assessment order in fact has been passed under Section 143(3) after serving notice under Section 142(1) and mention of Section 153A is only by way of abundant precaution and also to identify that it was case in which assessment has been made after search and to show year of search with respect to assessment. He further submitted that pursuant to notice issued under Section 142(1), return of income was filed by Assessee and this also shows that it was not in response to any notice under Section 153A. Mere mention of wrong provision will not make order invalid and for this purpose reliance is placed on this Court's judgment in Commissioner of Income Tax vs. U.P. State Food and Essential Commodities Corporation Ltd., 2006(285) ITR 151 (All). 8. In connected ITA No. 169 of 2008 all facts otherwise are similar except that it relates to Assessee, Sri Siraj Iqbal at whose premises search and seizure operation was conducted under Section 132 on 10.11.2005. Assessee was served with notice under Section 153A on 23.10.2007 calling for return of income. Assessee failed to file 6 any return of income. Thereafter detailed questionnaire dated 12.11.2007 in form of notice under Section 142(1) was served upon him on 13.11.2007 fixing 23.11.2007 as date of compliance. Assessee failed to submit reply hence was served with another notice under Section 142(1) calling for various details in respect of shopping cum residential complex at 4 A, Meerabai Marg, Lucknow alongwith production of stock register, purchase register, cash book, bank book, labour attendance register etc. Date for compliance was fixed on 26.11.2007 still Assessee failed to response. third opportunity was given vide letter dated 29.11.2007 asking him to file reply by 03.12.2007. He was also required to show cause, why penal action under Section 271(1)(b) of Act, 1961 be not taken against him. In circumstances, assessment was completed on 27.12.2007 determining total income at Rs. 3,79,01,530/ . In this assessment order also, in column meant for "Section under which order is passed", AO mentioned Section 153A/143(3) of Act, 1961. This order was challenged by Assessee before CIT(A) who allowed appeal vide order dated 04.02.2009, observing that order passed under Section 153A is not valid and it should have been passed under Section 143(3). Thereagainst, Revenue filed appeal before Tribunal which has been dismissed vide order dated 30.06.2009. This order has been passed by Tribunal following judgment dated 29.05.2009, impugned in connected ITA No. 168 of 2009. 9. Arguments of counsel for Revenue are common in both matters. 10. Admittedly in both cases no notice under Section 143(2) was issued to Assessee. Certain common undisputed facts as borne out from record may be noted chronologically, as under: ITA No. 168 of 2009 "(i) Date of Search 10.11.2005 at premises of Shri Siraj Iqabal and Shri Suhail Ahmad. 7 (ii) Warrant of authorization issued in name of Shri Siraj Iqbal was signed by Director of Income TAx (Inv.), Kanpur. (iii) Warrant of authorization issued in name of Shri Suhel Iqbal was signed by Addl. Director of Income Tax (Inv.). (iv) Warrant of authorization issued in name of Sri Monis Iqbal and Smt. Nida Ambreen Beg in respect of Locker No. 69, Allahabad Bank was signed by Addl. Director of Income Tax (Inv.) (v) Notice u/s 153C issued on 15.10.2007/ 14.11.2007. (vi) Return in response to notice u/s 153A was filed on 27.12.2007. (vii) No notice u/s 143(2) was issued and served on assessee. (viii) Assessment order u/s 153A/143(3) passed on 28.12.2007." ITA No. 169 of 2009 "(i) Date of Search 10.11.2005 (ii) Warrant of authorization issued in name of Shri Siraj Iqbal. (iii) Warrant was issued to search premises at 118/86 Kha, Cantt. Road, Lucknow. (iv) Notice u/s 153A was issued on appellant on 23.10.2007. (v) Return in response to notice u/s 153A was finalized on 27.12.2007. (vi) No notice u/s 143(2) was issued and served on assessee. (vii) Assessment order u/s 153A/143(3) passed on 27.12.2007." 11. Section 153A which is part of Chapter XIV which deals with "Procedure for Assessment", came on statute book as inserted by 8 Finance Act, 2003 w.e.f. 01.06.2003. In respect of period of assessment, Section 153A, as it was, read as under: "153A. Assessment in case of search or requisition. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in case of person where search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after 31st day of May, 2003, Assessing Officer shall (a) issue notice to such person requiring him to furnish within such period, as may be specified in notice, return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in prescribed form and verified in prescribed manner and setting forth such other particulars as may be prescribed and provisions of this Act shall, so far as may be, apply accordingly as if such return were return required to be furnished under section 139; (b) assess or reassess total income of six assessment years immediately preceding assessment year relevant to previous year in which such search is conducted or requisition is made : Provided that Assessing Officer shall assess or reassess total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within period of six assessment years referred to in this sub section pending on date of initiation of search under section 132 or making of requisition under section 132A, as case may be, shall abate. 9 (2) If any proceeding initiated or any order of assessment or reassessment made under sub section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub section (1) or section 153, assessment or reassessment relating to any assessment year which has abated under second proviso to sub section (1), shall stand revived with effect from date of receipt of order of such annulment by Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation. For removal of doubts, it is hereby declared that (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to assessment made under this section; (ii) in assessment or reassessment made in respect of assessment year under this section, tax shall be chargeable at rate or rates as applicable to such assessment year." (emphasis added) 12. aforesaid provision, as is evident from bare reading, clearly start with "non obstante" clause having overriding effect over Sections 139, 147, 148, 149, 151 and 153 and empowers AO to assess or re assess total income of six assessment years immediately preceding to assessment year, relevant to previous year in which such search is conducted or requisition is made. First proviso to sub section (1) further provides that AO shall assess or re assess total income in respect of each assessment year, falling within six assessment years. 13. Section 142 lays down procedure with regard to inquiry before assessment. Notice under Section 142(1) may be issued by AO for purposes of making assessment who has made return under Sections 139 or 115WD or in whose case time allowed under Section 139(1) for 10 furnishing return has expired. Section 142(2) provides that AO for purpose of obtaining full information in respect of income or loss of any person, may make such inquiry as he considers necessary. Sub section (3) of Section 142 says that except where assessment is made under Section 144, Assessee shall be given opportunity of being heard in respect of any material gathered on basis of any inquiry under sub section (2) or any audit under sub section (2A) and proposed to be utilized for purposes of assessment. 14. Section 143 talks of assessment and for our purposes relevant sub section (1), (2) and (3), as same existed for purpose of assessment of relevant assessment year, read as under: 143. Assessment. (1) Where return has been made under section 139, or in response to notice under sub section (1) of section 142, such return shall be processed in following manner, namely: (a) total income or loss shall be computed after making following adjustments, namely: (i) any arithmetical error in return; or (ii) incorrect claim, if such incorrect claim is apparent from any information in return; (b) tax and interest, if any, shall be computed on basis of total income computed under clause (a); (c) sum payable by, or amount of refund due to, assessee shall be determined after adjustment of tax and interest, if any, computed under clause (b) by any tax deducted at source, any tax collected at source, any advance tax paid, any relief allowable under agreement under section 90 or section 90A, or any relief allowable under section 91, any rebate allowable under Part of Chapter VIII, 11 any tax paid on self assessment and any amount paid otherwise by way of tax or interest; (d) intimation shall be prepared or generated and sent to assessee specifying sum determined to be payable by, or amount of refund due to, assessee under clause (c); and (e) amount of refund due to assessee in pursuance of determination under clause (c) shall be granted to assessee: Provided that intimation shall also be sent to assessee in case where loss declared in return by assessee is adjusted but no tax or interest is payable by, or no refund is due to, him: Provided further that no intimation under this sub section shall be sent after expiry of one year from end of financial year in which return is made. Explanation. For purposes of this sub section, (a) incorrect claim apparent from any information in return shall mean claim, on basis of entry, in return, (i) of item, which is inconsistent with another entry of same or some other item in such return; (ii) in respect of which information required to be furnished under this Act to substantiate such entry has not been so furnished; or (iii) in respect of deduction, where such deduction exceeds specified statutory limit which may have been expressed as monetary amount or percentage or ratio or fraction; (b) acknowledgement of return shall be deemed to be intimation in case where no sum is payable by, or refundable to, assessee under clause (c), and where no adjustment has been made under clause (a). 12 (1A) For purposes of processing of returns under sub section (1), Board may make scheme for centralised processing of returns with view to expeditiously determining tax payable by, or refund due to, assessee as required under said sub section. (1B) Save as otherwise expressly provided, for purpose of giving effect to scheme made under sub section (1A), Central Government may, by notification in Official Gazette, direct that any of provisions of this Act relating to processing of returns shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in that notification; so, however, that no direction shall be issued after 31st day of March, 2012. (1C) Every notification issued under sub section (1B), along with scheme made under sub section (1A), shall, as soon as may be after notification is issued, be laid before each House of Parliament. (2) Where return has been furnished under section 139, or in response to notice under sub section (1) of section 142, Assessing Officer shall, (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in return is inadmissible, serve on assessee notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which assessee may rely, in support of such claim: Provided that no notice under this clause shall be served on assessee on or after 1st day of June, 2003; (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that assessee 13 has not understated income or has not computed excessive loss or has not under paid tax in any manner, serve on assessee notice requiring him, on date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which assessee may rely in support of return: Provided that no notice under clause (ii) shall be served on assessee after expiry of six months from end of financial year in which return is furnished. (3) On day specified in notice, (i) issued under clause (i) of sub section (2), or as soon afterwards as may be, after hearing such evidence and after taking into account such particulars as assessee may produce, Assessing Officer shall, by order in writing, allow or reject claim or claims specified in such notice and make assessment determining total income or loss accordingly, and determine sum payable by assessee on basis of such assessment; (ii) issued under clause (ii) of sub section (2), or as soon afterwards as may be, after hearing such evidence as assessee may produce and such other evidence as Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, Assessing Officer shall, by order in writing, make assessment of total income or loss of assessee, and determine sum payable by him or refund of any amount due to him on basis of such assessment: Provided that in case of (a) research association referred to in clause (21) of section 10; (b) news agency referred to in clause (22B) of section 10; 14 (c) association or institution referred to in clause (23A) of section 10; (d) institution referred to in clause (23B) of section 10; (e) fund or institution referred to in sub clause (iv) or trust or institution referred to in sub clause (v) or any university or other educational institution referred to in sub clause (vi) or any hospital or other medical institution referred to in sub clause (via) of clause (23C) of section 10, which is required to furnish return of income under sub section (4C) of section 139, no order making assessment of total income or loss of such research association, news agency, association or institution or fund or trust or university or other educational institution or any hospital or other medical institution, shall be made by Assessing Officer, without giving effect to provisions of section 10, unless (i) Assessing Officer has intimated Central Government or prescribed authority contravention of provisions of clause (21) or clause (22B) or clause (23A) or clause (23B) or sub clause (iv) or sub clause (v) or sub clause (vi) or sub clause (via) of clause (23C) of section 10, as case may be, by such research association, news agency, association or institution or fund or trust or university or other educational institution or any hospital or other medical institution, where in his view such contravention has taken place; and (ii) approval granted to such research association or other association or fund or trust or institution or university or other educational institution or hospital or other medical institution has been withdrawn or notification issued in respect of such news agency or fund or trust or institution has been rescinded : 15 Provided further that where Assessing Officer is satisfied that activities of university, college or other institution referred to in clause (ii) and clause (iii) of sub section (1) of section 35 are not being carried out in accordance with all or any of conditions subject to which such university, college or other institution was approved, he may, after giving reasonable opportunity of showing cause against proposed withdrawal to concerned university, college or other institution, recommend to Central Government to withdraw approval and that Government may by order, withdraw approval and forward copy of order to concerned university, college or other institution and Assessing Officer." (emphasis added) 15. As we have already noticed, this fact is not disputed that no notice under Section 143(2) was ever issued. Tribunal has found that notice under Section 143(2) does not give any jurisdiction to AO to make assessment under Section 143(3) but it is gathered by AO just after furnishing return of income by Assessee under Section 139 or on issuance and service of notice under Section 142(1) requiring Assessee to furnish return of income or on notice issued under Section 148 of Act, 1961. However, notice under Section 143(2) is provision obligatory to comply before making assessment under Section 143(3) or Section 144, as case may be. 16. Effect of non issuance of notice under Section 143(2) was considered in ACIT and another vs. Hotel Blue Moon, 2010(321) ITR 362 (SC), where Court has said as under: "An analysis of this sub section indicates that, after return is filed, this clause enables Assessing Officer to complete assessment by following procedure like issue of notice under section 143(2)/142 and complete assessment under section 143(3). This section does not provide for accepting return as provided under section 143(1)(a). Assessing Officer has to 16 complete assessment under section 143(3) only. In case of default in not filing return or not complying with notice under section 143(2)/142, Assessing Officer is authorized to complete assessment ex parte under section 144. Clause (b) of section 158BC by referring to section 143(2) and (3) would appear to imply that provisions of section 143(1) are excluded. But section 143(2) itself becomes necessary only where it becomes necessary to check return, so that where block return conforms to undisclosed income inferred by authorities, there is no reason, why authorities should issue notice under section 143(2). However, if assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from date of filing of block return. Omission on part of assessing authority to issue notice under section 143(2) cannot be procedural irregularity and same is not curable and, therefore, requirement of notice under section 143(2) cannot be dispensed with." (emphasis added) 17. Similar view was taken in Commissioner of Income Tax vs. Rajeev Sharma, 2011(336) ITR 678 (Allahabad), Lucknow Bench and Court in para 45 of judgment said as under: "45. In view of above, provision contained in Section 143 (2) of Act is mandatory in nature and it shall be obligatory for Assessing Officer to apply mind to contents of return filed in response to notice under Section 148 of Act and record reasons and thereafter, issue notice under Section 143 (2) of Act before proceeding to decide controversy with regard to escaped assessment." (emphasis added) 18. Aforesaid decisions have been followed in Income Tax Appeal No. 69 of 2006, Hindalco Industries Ltd. vs. Commissioner of Income Tax, Lucknow, decided on 25.07.2011. Court therein relied on 17 Delhi High Court's judgment in Director of Income Tax vs. Society for Worldwide Interbank Financial Telecommunication, 2010(40) DTR (Del) 17 and Bombay High Court's decision in Allana Cold Storage Ltd. vs. Income Tax Officer and other, 2006(287) ITR (Bom.) 1. Division Bench of this Court, in which one of us (Hon'ble Sudhir Agarwal, J.) was Member, has also followed same view in Income Tax Appeal No. 14 of 2015, U.P. State Industrial Development Corporation Ltd. vs. Commissioner of Income Tax II, Kanpur, decided on 11.07.2016. 19. Learned counsel for Revenue did not dispute seriously that mention of Section 153A was error and that will not vitiate assessment order but since assessment was claimed to have been completed under Section 143(3) and if that be so, notice under Section 143(2) was mandatory and non compliance thereof vitiates assessment, therefore, we answer Question I in favour of Assessee and against Revenue holding that Tribunal was justified in dismissing appeal of Revenue not for quoting wrong provision but, in substance, for non compliance of mandatory provision which was not treated to be mere procedural irregularity in various authorities as discussed above. 20. Similarly, Questions II and III are also answered against Revenue holding that Tribunal was justified in dismissal appeal of Revenue for reasons we have already stated above. 21. Both appeals lack merit. Dismissed accordingly. 22. Interim order, if any, stands vacated. Order Date : 28.07.2017 AK CommissionerofIncome-tax(Central),Kanpur v. MoinsIqbal