Vemula Narasimha Rao, Warangal, Hyderabad v. ACIT, Cirlce-1, Warangal, Warangal

ITA 397/HYD/2016 | 2008-2009
Pronouncement Date: 15-03-2021 | Result: Allowed

Appeal Details

RSA Number 39722514 RSA 2016
Assessee PAN ADPPV9370G
Bench Hyderabad
Appeal Number ITA 397/HYD/2016
Duration Of Justice 4 year(s) 11 month(s) 21 day(s)
Appellant Vemula Narasimha Rao, Warangal, Hyderabad
Respondent ACIT, Cirlce-1, Warangal, Warangal
Appeal Type Income Tax Appeal
Pronouncement Date 15-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB-B
Tribunal Order Date 15-03-2021
Last Hearing Date 21-11-2017
First Hearing Date 10-02-2021
Assessment Year 2008-2009
Appeal Filed On 24-03-2016
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S. GODARA JUDICIAL MEMBER AND SHRI L.P. SAHU ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 3 52 TO 355 /H YD / 1 6 397 & 398/HYD/16 20 04 - 05 TO 2009 - 10 SRI VEMULA NARASIMHA RAO H YDERABAD [PAN: ADPPV9370G ] A CIT CIRCLE 1 WARANGAL 356 TO 358 /H YD /1 6 395 & 396/H/16 200 4 - 05 TO 2006 - 07 2007 - 08 & 2009 - 10 SRI VEMULA LAXMI NARAYANA HYDERABAD [PAN: ADIPV7622C] ACIT CIRCLE 1 WARANGAL FOR ASSESSEE : SHRI P.MURALI MOHANA RAO AR FOR REVENUE : SHRI ROHIT MUZUMDAR DR DATE OF HEARING : 10 - 02 - 202 1 DATE OF PRONOUNCEMENT : 15 - 03 - 2021 O R D E R PER S.S. GODARA JM : THE INSTANT BATCH OF ELEVEN APPEALS PERTAIN S TO TWO ASSESSEES S/SHRI VEMULA NAR A SIMHA RAO AND VEMULA LAXMI NAR AYANA . THE FORMER ASSESSEE S SIX APPEALS ITA 352 TO 355 AND 397 TO 398/H/2016 FOR AYS 2004 - 05 - 2009 - 10 ARISE FROM CIT(A) - 5 HYDERABADS COMMON ORDER DATED 2 8.01.2016 PASSED IN CASE NOS. 0192 0191 0189 0188 0190 & 0193/2015 - 16 ; RESPECTIVELY. THE LATTER ASSESSEES FIVE APPEALS ITA NOS. 356 TO 358 /H/ 16 FOR AYS 2004 - 05 - 2006 - 07 AND 395 & 396/H/16 FOR AYS 2 007 - 08 AND 2009 - 1 0 ARI S E FROM THE VERY CIT(A)S ORDER OF THE SAME DATE PASSED IN CASE NOS. 0183 0184 2 0186 0187 & 0185/2015 - 16 ; RESPECTIVELY. RELEVANT PROCEEDINGS IN ALL THESE CASES ARE U/S 144 R.W.S. 147 OF THE INCOME TAX ACT 1961 ( IN SHORT THE ACT). HEARD SH RI P.MURALI MOHANA RAO (AR) REPRESENTING THE ASSESSEES AND SHRI ROHIT MUZUMDAR (DR) APPEARING FOR THE REVENUE; RESPECTIVELY. CASE FILES PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THE LEARNED LOWER AUTHORITIES HAVE FRAMED THE IMPUGNED RE - ASS ESSMENTS U/S 1 48/147 PROCEEDINGS GOING THE SURVEY ACTION DATED 21.12.2009 CONDUCTED AT THE ASSESSEE S PREMISES CULMINATING IN IMPUGNED IDENTICAL ADDITIONS IN THE NATURE OF UNEXPLAINED/UNACCOUNTED INCOME(S) INVOLVING VARYING SUMS OF MONEY AS UPHELD IN THE CIT(A)S ORDER. A PERUSAL OF THE CASE FILES SUGGEST THAT THESE TWO ASSESSEES HAVE FILED THEIR IDENTICAL PETITIONS; BOTH DATED 27.7.2018 SEEKING TO RAISE THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL. 26. AS PER THE RATIO LAID DOWN BY THE HO NBLE SUPREME COURT OF INDIA IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC) THE ITAT HAS JURISDICTION TO EXAMINE ANY QUESTION OF LAW WHICH THOUGH NOT RAISED BEFORE THE CIT(A) BUT IS RAISED BEFORE THE ITAT FOR THE FIRST TIME. 2 7 . THE LD. AO ERRED IN MAKING THE ASSESSMENT U/S 143(3) R.W.S.147 WITHOUT ISSUING NOTICE U/S 143(2) WHICH MAKES THE ASSESSMENT ORDER INVALID. 2 8 . THE LD. AO OUGHT TO HAVE APPRECIATED THE FACT THAT ISSUANCE OF NOTICE U/S 143(2) IS MANDATORY EVEN FOR THE REASSESSMENT PROCEEDINGS. 2 9 . THE ASSESSEE MAY ADD ALTER OR MODIFY OR SUBSTITUTE ANY OTHER POINT TO THE GROUNDS /ADDL. GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2.1. CASE FILES SUGGEST THAT THIS TRIBUNALS EARLIER COORDINATE BENCH HAD SOUGHT FOR THE R EVENUES RESPONSE AS TO WHETHER THE ASSESSING OFFICER HAD IN FACT ISSUED S.142(2) NOTICE ( S ) O R NOT. IN RESPONSE THERETO MR.MUZUMDAR HA S 3 PLACED ON RECORD THE ASSESSING OFFICERS LETTER DATED 29.01.2021 MAKING IT CLEAR THEREIN THAT NO SUCH SEC.143(2) NOTICE FORMS PART OF RECORD AS UNDER: F.NO. ACIT/C - 3(1)/HYD/ITAT/2020 - 21 DT. 29.01.2021 TO: THE SR. AUTHORISED REPRESENTATIVE 1 B BENCH ITAT HYDERABAD. SIR/MADAM SUB: APPELLATE PROCEEDINGS IN THE CASE OF SHRI VEMULA NARASIMHA RAO (PAN: ADPPV9370G) AND SMT. VEMULA LAKSHMI NARAYANAA RAO (PAN: ADIPV7622C) AYS 2004 - 05 TO 2009 - 10 REPORT FURNISHING OF REG. REF: LETTER OF SR.AR - 1 BENCH B ITAT HYDERABAD IN F.NO.SR.AR/HYD/VNR & NLR/REPORT/2020 - 21 DATED 21.122021. 1. PLEASE REFER TO THE ABOVE CALLING FOR CATEGORICAL REPORT ON WHETHER NOTICES U/S 143(2) WERE ISSUED AND SERVED IN THE CASES OF SHRI VEMULA NARASIMHA RAO (PAN: ADPPV9370G) AND SMT. VEMULA LAKSHMI NARAYANA RAO (PAN: ADIPV7622C) FOR THE AYS 2004 - 05 TO 2009 - 10. 2. ON VERIFICATION OF CASE RECORDS OF ALL THE ASSESSMENT YEARS IT IS SUBMITTED THAT 143(2) NOTICES ARE NOT AVAILABLE AND THE STATUS OF ISSUANCE OF NOTICES IS NOT KNOWN. HOWEVER THE ASSESSEES DID NOT FILE RETURNS OF INCOME IN RESPONSE TO NOTICES ISSUED U/S 148. 3. THE FOLLOWING CASE RECORDS ARE FORWARDED HEREWITH FOR NECESSARY ACTION. SL. NO NAME OF THE ASSESSEE DESCRIPTION 1. VEMULA NARASIMHA RAO A.YS 2004 - 05 TO 2009 - 10 (6 VOLUMES) & HOME FOLDER (1 VO.) 2. VEMULA LAKSHMI NARAYANA RAO A.YS 2004 - 05 TO 200 7 - 08 ( 4 VOLUMES) ; AY 2009 - 10 (1 VOL) & HOME FOLDER (1 VO.) 4 2.2. LEARNED AUTHORISED REPRESENTATIVE STATED DURING THE COURSE OF HEARING THAT THE ASSESSEES IDENTICAL PETITIONS SEEKING ADMISSION OF LEGAL GROUND GOING TO THE ROOT OF THE MATTER(S) DESERVE TO BE ADMITTED SINCE ALL THE RELEVANT FACTS ALREADY FORMS PART OF THE RECORDS BEFORE US. 2.3. LEARNED D EPARTMENTAL R EPRESENTATIVE ON THE OTHER HAND HAS FILED A DETAILED NOTE OPPOSING ADMISSION OF ASSESSEES ADDITIONAL GROUNDS AS FOLLOWS: BEFORE THE HON'BLE ITAT B BENCH HYDERABAD WRITTEN SUBMISSION IN THE CASE OF V V NARSIMHA RAO AND V LAXMINARAYAN ITA NO. 352 - 355 397 - 398/HYD/2016 ITA NO. 356 - 358 395 - 396/HYD/2016 THE APPLICANTS V NARSIMHA RAO AND V LAXMINARAYAN HAVE FILED ADDITIONAL GROUNDS OF APPEAL AND PRAYED TO ADMIT THE SAME U/S 254 OF THE LT. ACT. THE APPLICA NTS HAVE RELIED UPON THE DECISIONS IN THE CASES OF NATIONAL THERMAL POWER CO. LTD. (1998) 229 ITR 383 AS FOLLOWS: 'THE LD.AO ERRED IN MAKING THE ASSESSMENT ULS 143(2) R.W.S 147 WITHOUT ISSUING NOTICE U/ S 143(2) WHICH MAKES THE ASSESSMENT ORDER INVALID .' IN THIS REGARD IT IS HUMBLY SUBMITTED THAT THE ADDITIONAL GROUNDS OF APPEAL MAY NOT BE ADMITTED FOR THE REASONS DISCUSSED HEREUNDER. THE PLEA THAT NO NOTICE U/S 143(2) WAS ISSUED IS A QUESTION OF FACT. HOWEVER THE FACT ON RECORD IS THAT THE ASSESSMEN T WAS MADE U/S 144 OF THE LT. ACT. THE PROVISIONS OF SECTION 144 CAN BE MADE APPLICABLE IN TWO CIRCUMSTANCES. ONE WHEN THE NOTICE U/S 143(2) IS ISSUED AND THE AO COMES TO A CONCLUSION THAT THE EXPLANATION OR SUBMISSIONS ARE NOT APPROPRIATE THEN HE MAY PAS S BEST JUDGEMENT ORDER U/S 144. SECOND WHEN THERE IS NO COMPLIANCE TO NOTICES U/S 112(1) THEN ALSO THE AO CAN RESORT TO THE BEST JUDGEMENT U/S 144. IN THE PRESENT CASE IT IS EVIDENT FROM THE RECORDS THAT EVEN AFTER AFFIRMING AMPLE OPPORTUNITIES TO THE A SSESSEE NO COMPLIANCE WAS MADE. THUS THE AO WAS JUSTIFIED IN PASSING ORDER U/S 144. THE RELIANCE ON THE DECISION OF NTPC IS MISPLACED TO T HE EXTENT THAT IT CA NNOT BE S AID TO HAVE LAID DOWN A PROPOSITION THAT ANY QUESTION WHETHER IT RELATES TO THE SAME S UBJECT - MATTER OR NOT CAN BE RAISED AT ANY TIME BEFORE THE TRIBUNAL AND THE TRIBUNAL CAN GRANT RELIEF ON AN ITEM OF INCOME WHICH WAS NEVER DISPUTED EARLIER. EVEN IN THE DECISION OF NTPC IT WAS HELD THAT QUESTION OF LAW CAN BE RAISED AFRESH BEFORE I TAT IF THE RELEVANT FACTS ARE ON RECORD HOWEVER THE APPELLANT HAS TO SATISFY THAT THE GROUND RAISED WAS BONAFIDE AND THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD REASONS. THE RELEVANT EXTRACT IS AS UNDER : - '6. IN THE CASE OF JUTE CORPN. OF INDIA LTD. V. CIT [19917 187 ITR 688 THIS COURT WHILE DEALING WITH THE POWERS OF THE MC OBSERVED THAT AN APPELLATE AUTHORITY HAS ALL THE POWERS WHICH THE ORIGINAL AUTHORITY MAY HAVE IN DECIDING 5 THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS IF AN Y PRESCRIBED BY THE STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE IS NO GOOD REASON TO JUSTIFY CURTAILMENT OF TH E POWER OF THE MC IN ENTERTAINING AN ADDITIONAL GROUND RAISED BY THE ASSESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY THE ITO. THIS COURT FURTHER OBSERVED THAT THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF A NEW PLEA IN AN APP EAL AND EACH CASE HAS TO BE CONSIDERED ON ITS OWN FACTS. THE MC MUST BE SATISFIED THAT THE GROUND RAISED WAS BONA FIDE AND THAT THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD REASONS. THE AAC SHOULD EXERCISE HIS DISCRETION IN PERMITTING OR NOT PERMI TTING THE ASSESSEE TO RAISE AN ADDITIONAL GROUND IN ACCORDANCE WITH LAW AND REASON. THE SAME OBSERVATIONS WOULD APPLY TO APPEALS BEFORE TH E TRIBUNAL ALSO.' IN THE PRESENT APPEAL THE APPELLANT HAS NOT JUSTIFIED THAT THE ADDITIONAL GROUND IS BONA FIDE AND THAT THERE WERE VALID REASONS AS TO WHY THESE WERE NOT RAISED EARLIER. IN THE CASE OF BATLIBOI & CO. LTD. VS DCIT(ITAT MUM) 67 I TD 397 MUMBAI I TAT HELD THAT THE APPELLANT HAS TO SATISFY TRIBUNAL ABOUT EXISTENCE OF GOOD REASON FOR OMISSION OF SUCH GROUND IN ORIGINAL APPEAL MEMO AND THAT THE FAILURE OF ASSESSEE TO GIVE ANY REASON ADDITIONAL GROUND COULD NOT BE ENTERTAINED. THE APPELLATE AUTHORITIES IF SATI SFIED THAT THE ADDITIONAL GROUND RAISED WAS BONA FIDE AND THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD REASONS MAY IN ITS DISCRETION PERMIT THE ASSESSEE TO RAISE AN ADDITIONAL GROUND EVEN AFTER THE EXPIRY OF THE LIMITATION PROVIDED FOR FILING AN APPEAL. THE TRIBUNAL HAS GOT THE DISCRETION TO EITHER ADMIT THE ADDITIONAL GROUND OF APPEAL OR NOT TO ADMIT THE SAME. THAT THE TRIBUNAL HAS THE DISCRETION DOES NOT MEAN THAT THE TRIBUNAL DOES NOT HAVE THE DUTY TO EXERCISE THE DISCRETION JUDICIOUSLY. IT IS THE DUTY OF ALL THE JUDICIAL AUTHORITY TO EXERCISE ITS DISCRETION MOST JUDICIOUSLY. THEREFORE WHEN A DISCRETION IS VESTED IN THE JUDICIAL AUTHORITIES IT IS DUTY BOUND TO SATISFY ITSELF ABOUT THE EXISTENCE OF THE GOOD REASONS BEFORE EXERCISING THE DISCRET ION IN FAVOUR OF THE ASSESSEE. REFERENCE MAY BE MADE THE P&H HC DECISION IN THE CASE OF ARAVALI ENGINEERS (P) LTD. VS CIT & ANR. (P&H) 335 ITR 508. IN THIS CASE THE ASSESSEE HAS RAISED THE PLEA OF THE ASSESSMENT BEING BARRED BY LIMITATION ON THE GROUND T HAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT SERVED WITHIN THE STIPULATED TIME. THE TRIBUNAL HELD THAT THE ASSESSEE DID NOT RAISE THE PLEA EARLIER IN SPITE OF OPPORTUNITY BEING AVAILABLE AND ON A QUESTION OF FACT SUCH A PLEA COULD NOT BE ALLOWED TO BE RAISED [OR THE FIRST TIME BEFORE THE TRIBUNAL. IT WAS HELD THAT NORMALLY A QUESTION OF FACT MAY NOT BE ALLOWED TO BE RAISED FOR THE FIRST TIME AS IT MAY PREJUDICE THE OTHER SIDE. IF SUCH QUESTION IS RAISED AT THE EARLIEST OPPORTUNITY THE OTHER SIDE CAN LEAD EVIDENCE WHICH IT MAY NOT BE ABLE TO DO IF SUCH A QUESTION IS RAISED FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY. THE RELEVANT EXTRACT IS AS UNDER - '4. IT MAY ALSO BE MENTIONED THAT THE ASSESSEE RAISED PLEA OF THE ASSESSMENT BEING BARRED BY L IMITATION ON THE GROUND THAT NOTICE UNDER SECTION 143(2) OF THE 6 ACT WAS NOT SERVED WITHIN THE STIPULATED TIME. THE TRIBUNAL HELD THAT THE ASSESSEE DID NOT RAISE THE PLEA EARLIER IN SPITE OF OPPORTUNITY BEING AVAILABLE AND ON A QUESTION OF FACT SUCH A PLEA COULD NOT BE ALLOWED TO BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. REFERENCE WAS MADE TO THE JUDGMENTS OF THE HON'BLE SUPREME COURT IN NATIONAL THERMAL POWER CO. LTD. V. CIT [19981 229 ITR 383 AND JUTE CORPORATION OF INDIA LTD. V. CIT [19911 187 IT R 688/53 TAXMAN 85. 5. THE APPEAL WAS ADMITTED BY THIS COURT TO CONSIDER THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW CLAIMED BY THE ASSESSEE: '(I ) WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE THE TRIBUNAL HAD FALLEN IN ERROR IN DISALLOWING THE APPELLANT FROM RAISING AN ADDITIONAL ISSUE CONTRARY TO RATIO OF THE SUPREME COURT IN NATIONAL THERMAL V. CIT (SUPRA) WHEN ALL EVIDENCE FOR ADJUDICATING T HE SAME WAS PLACED BEFORE IT ? (II) WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE THE PROVISIONS OF SECTION 73 COULD BE INVOKED AGAINST THE ASSESSEE WHEN THE ASSESSEE WAS SQUARELY COVERED BY EXPLANATION OF SECTION 73 VIDE WHICH THE SALE AND PURCHASE OF SHARES BY A COMPANY WOULD NOT BE SPECULATIVE IN NATURE IN CASE ITS INCOME WAS MAINLY DERIVED FROM HOUSE PROPERTY OR CAPITAL GAINS OR INCOME OF LIKE NATURE? (III) WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE TRIBUNAL WAS RIGHT IN LAW IN HOLD ING THAT THE BROKERAGE PAID WAS NOT AN ADMISSIBLE EXPENDITURE UNDER SECTION 24 OF THE IT ACT EVEN THOUGH THE RENT ACTUALLY RECEIVED BY THE ASSESSEE OR THE TENANT WAS AFTER DEDUCTING THE BROKERAGE PAID?' 6. WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES. 7. AS REGARDS QUESTION (I) WE DO NOT FIND ANY REASON TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN BY THE TRIBUNAL. NO DOUBT THAT AN APPELLATE AUTHORITY CAN ALLOW A QUESTION TO BE RAISED FOR THE FIRST TIME EVEN IF SUCH A QUESTION WAS NOT RAISED AT A LOWER FORUM BUT THE DISCRETION TO DO SO HAS TO BE EXERCISED IN THE INTEREST OF JUSTICE IN THE FACTS AND CIRCUMSTANCES AND NOT MECHANICALLY. NORMALLY A QUESTION OF FACT MAY NOT BE ALLOWED TO BE RAISED FOR THE FIRST TIME AS IT MAY PREJUDICE THE OTHER SIDE. IF SUC H QUESTION IS RAISED AT THE EARLIEST OPPORTUNITY THE OTHER SIDE CAN LEAD EVIDENCE WHICH IT MAY NOT BE ABLE TO DO IF SUCH A QUESTION IS RAISED FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY. OF COURSE THERE CAN BE NO TOTAL BAR ON SUCH QUESTION BEING AL LOWED IF INTEREST OF JUSTICE SO REQUIRES. IN NATIONAL THERMAL POWER LTD. 'S CASE (SUPRA) IT HAS NOT BEEN LAID DOWN THAT IN EVERY CASE A QUESTION OF FACT CAN BE MECHANICALLY ALLOWED TO BE RAISED FOR THE FIRST TIME. THE MADHYA PRADESH HIGH COURT IN CIT V. PREMIUM CAPITAL MARKET & INVESTMENT LTD. [20051 275 ITR 260/[20061 151 TAXMAN 194 HELD THAT QUESTION OF VALIDITY OF NOTICE MAY NOT BE ALLOWED TO BE RAISED FOR THE FIRST TIME IN APPEAL. SUBSEQUENT LEGISLATIVE AMENDMENT ADDING SECTION 292BB SUPPORTS THIS P RINCIPLE. THE QUESTION HAS THUS TO BE ANSWERED AGAINST THE ASSESSEE.' IN THE CASE OF PREMIUM CAPITAL MARKET & INVESTMENT LTD. [2006] 151 TAXMAN 194 (MP)IT WAS HELD THAT ASSESSE E CANNOT RAISE THE PLEA OF IRREGULAR SERVICE FOR 7 THE FIRST TIME BEFORE ITAT THAT TOO THROUGH ADDITIONAL GROUND AFTER PARTICIPATING IN PROCEEDINGS CONTESTING ISSUE ON MERITS BUT NOT RAISING ANY OBJECTION ON INVALIDITY OR ILLEGALITY OR IRREGULARITY OF SERVICE OF SAID NOTICE BY AFFIXTURE EITHER BEFORE AO OR THE CIT(A) IN THE CAS E OF BEGUM NOOR BANU [1993] 69 TAXMAN 565 (ANDHRA PRADESH) IT WAS HELD THAT TRIBUNAL HAS NO JURISDICTION TO GRANT RELIEF ON CONSIDERATION OF AN ADDITIONAL GROUND RAISED BEFORE IT BY ASSESSEE FOR FIRST TIME WHEN THE GROUND WAS RELATED TO AN ITEM OF ASSESSME NT WHICH WAS NOT DISPUTED AT ANY EARLIER STAGE. FINALLY IT MAY ALSO BE APPRECIATED THAT WHEN THE ISSUE WAS NOT RAISED BEFORE THE AO OR THE CIT(A) AND THE ASSESSEE WAS GIVEN DUE OPPORTUNITY TO FILE ALL THE EVIDENCES BEFORE THE LOWER AUTHORITIES NO PREJUDICE HAS BEEN CAUSED TO HIM. THE HON'BLE ITAT MAY THUS PERUSE THE ABOVE SUBMISSION AND MAY NOT ADMIT THE ADDITIONAL GROUNDS OF APPEAL BY DISMISSING THE SAME. SD/ - [R.M . MUZUMDAR] SR. AR - L ITAT B BENCH HYDERABAD. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL PLEA DINGS IN FAVOUR AND AGAINST ASSESSEE S PETITIONS SEEKING ADMISSION OF IDENTICAL ADDITIONAL GROUND THAT SINCE THE ASSESSING OFFICER HAD NOT ISSUED SEC.143(2) NOTICE(S) ALL THESE ASSESSMENTS/RE - ASSESSMENTS DESERVE TO BE DECLARED NULL AND VOID. THERE CAN HARDLY BE ANY DISPUTE ABOUT THE SETTLED LEGAL POSITION THAT SUCH ISSUANCE OF SEC.143(2) NOTICE IS VERY MUCH A MANDATORY CONDITION BEFORE FRAMING OF AN ASSESSMENT ; FOR RE - ASSESSMENT (S) INCLUDING A BEST JUDGEMENT ASSESSMENT U/S 144 OF THE ACT. ALTHOUGH THE LEARNED DR HAD SOUGHT TO PIN - POINT A DISTINCTION IN THE IMPUGNED BEST JUDGEMENT ASSESSMENT BEFORE US ON THE GROUND THAT THE ASSESSING OFFICER MAY PROCEED EX - PARTE AND FRAME THE ASSESSMENT BASED ON THE FACTS ON RECORD AFTER ISSUING SEC.142(1) NOTICE ONLY WE FIND NO MERIT IN THIS LINE OF ARGUMENT SINCE SEC.143(2) PROCEDURE IS A MANDATORY CONDITION AS PROPOUNDED IN HONBLE APEX COURTS DECISION IN HOTEL BLUE MOON CAS E (SUPRA). SUCH A N ISSUANCE OF NOTICE IS ALSO A CONDITION PRECEDENT IN SEC.144(1)(C ) BEFORE THE ASSESSING OFFICER PROCEEDS IN BEST JUDGEMENT ASSESSMENT AS WELL THEREFORE. 8 3.1. WE ALSO DO NOT FIND ANY MERIT IN R EVENUES STAND CONTESTING ASSESSEES PETI TION(S) SEEKING ADMISSION OF THEIR ADDITIONAL GROUNDS AS EXTRACTED IN PRECEDING PARAGRAPHS. HONBLE APEX COURTS LAND MARK JUDGEMENT IN NTPC VS. CIT 229 ITR 383 AS CONSIDERED IN A L L C ARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 26 (MUM)(SB) HOLDS THAT TH IS TRIBUNAL CAN VERY WELL ENTERTAIN AN ADDITIONAL GROUND ; LEGAL IN NATURE PROVIDED ALL THE RELEVANT FACTS FORM PART OF RECORD S SO AS TO DETERMINE THE CORRECT TAX LIABILITY OF ASSESSEE . WE MAKE IT CLEAR THAT IT IS NOT ONLY THAT ASSESSEE(S ) PAPER BOOKS INCLUDING THE ASSESSMENT NOTINGS BUT ALSO THE ASSESSING OFFICERS RESPONSE AS WELL (SUPRA) WHICH HAVE MADE IT CLEAR THAT NO SUCH SEC.143(2) NOTICE HAD BEEN ISSUED BEFORE MAKING ALL THESE ASSESSMENTS. WE THUS ACCEPT ASSESSEES PETITIONS SEEK ING TO RAISE IDENTICAL SUBSTANTIVE GROUND AS EXTRACTED IN THE PRECEDING PARAGRAPHS. 3.2. WE NOW PROCEED TO EXAMINE THE LEGALITY OF THE IMPUGNED ASSESSMENTS. MR. MUZUMDAR VEHEMENTLY CONTENDED DURING THE COURSE OF HEARING THAT THE MERE FACT THAT ASSESSING OFFICER STATED THAT NO SUCH NOTICE ON RECORD WOULD NOT PER SE MEAN THAT HE HAD NOT ISSUED ANY SUCH NOTICE U/S 143(2) OF THE ACT AT ALL. WE WISH TO OBSERVE HERE THAT WE HAVE OURSELVES PERUSED THE ORIGINAL ASSESSMENT RECORDS COMING FROM THE DEPARTMENT SIDE. MR. MUZUMDAR S CASE IS THAT SINCE WE ARE DEALING WITH OLD RECORDS THE ABOVE STATED NOTICE(S) APPEAR TO HAVE BEEN MISPLACED UNINTENTIONALLY. WE SEE NO RE ASON TO ACCEPT R EVENUES INSTANT STAND. EVEN A BARE PERUSAL OF THE ASSESSMENT RE CORDS NOWHERE INDICATE S THAT SEC.143(2) NOTICES HAD BEEN ISSUED TO THESE ASSESSEES. COUPLED WITH THIS THERE IS NO DISPUTE THAT AS PER THESE CASE RECORDS NO NOTICE HAD BEEN ISSUED AND ALSO THE ASSESSING OFFICERS CORRESPONDING ASSESSMENTS DO NOT REVE AL THAT HE HAD TAKEN RECOURSE TO SEC. 143(2) PROCESS AT ALL . ALL THESE FACTS CORROBORATE AND SUPPORT THE ASSESSEE S STAND THAT THE IMPUGNED ASSESSMENTS HAVE BEEN FRAMED WITHOUT ISSUE OF SEC.143(2) NOTICES AD THEREFORE NOT SUSTAINABLE IN LAW AS SETTL ED IN HOTEL BLUE MOON CASE (SUPRA). 9 3.3. MR. MUZUMDARS NEXT ARGUMENT IS THAT THESE ASSESSES HAVE NOT FILED ANY RETURN IN RESPONSE TO ASSESSING OFFICERS SEC.148 NOTICE(S) ISSUED TO THEM IN ALL THESE ASSESSMENT YEARS. THE SAME GOES AGAINST THE RECORDS SINCE THE ASSESSMENT ORDER (S) IN ALL THESE CASES TAKE NO TE OF THE ASSESSEES LETTER(S) DATED 4.1.2010 THAT THE ORIGINAL RETURNS BE TREATED AS THOSE FILED IN RESPONSE TO RE - OPENING MECHANISM. 3.4. THE FOLLOWING JUDICIAL PRECEDENTS HOLD THAT AN ASSESSEES LETTER SEEKING TO TREAT THE ORIGINAL RETURNS AS IN FURTHERANCE TO SEC.148 NOTICE(S) CULMINATES IN FILING OF A VALID RETURN REQUIRING ISSUE OF SEC.143(2) NOTICES THEREAFTER AND FAILURE ON A SSESSING O FFICERS PART IN SUCH A SITUATION LEADS TO THE ASSESSME NT IN QUESTION BE DECLARED A NULLITY. (2016) 74 TAXMAN.COM 239 (KERALA) DCIT VS. MEHTA EMPORIUM JEWELLERS MUMBAI ; DCIT VS. SHRI JAI SHIV SHANKAR TRADERS P LTD. 383 ITR 448 (DELHI); SAPTHA GIRI FINANCE & INVESTMENTS VS. ITO (201 3 ) 90 DTR 289 (MAD) (2010 ) 192 TAXMANN.COM 197 (ALLAHABAD) CIT VS. RAJEEV SHARMA (2018) (II) TMI 874 (RAJ. HC) PCIT VS. URMILA DEVI SHARMA WE TAKE INTO ACCOUNT ALL THESE FACTS AND CIRCUMSTANCES AND HOLD THAT THESE ELEVEN ASSESSMENTS FRAMED ON 30.12.2011 ARE INVALID ONES. THE S AME STAND QUASHED THEREFORE. 4 . THE ASSESSEES ADDITIONAL SUBSTANTIVE GROUND TO THIS EFFECT AS EXTRACTED IN PRECEDING PARAGRAPHS IS ACCEPTED. SO IS THE OUTCOME OF ALL THESE APPEALS. ALL OTHER PLEADINGS ON MERITS IN THESE ELEVEN APPEALS STAND RENDERE D INFRUCTUOUS AS LEARNED COUNSEL HAS NOT RAISED ANY OTHER ARGUMENT IN VIEW OF THE FACT THAT THE ASSESSMENTS HEREIN STAND QUASHED. THESE TWIN ASSESSEES ALL ELEVEN APPEALS ARE ALLOWED IN ABOVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN RESPECTIVE FILES. ORIGINAL ASSESSMENT RECORDS BE RETURNED TO LEARNED CIT - DRS OFFICE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH MARCH 2021. SD/ - SD/ - (L.P SAHU) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD DATED: 15 - 0 3 - 2021 GMV 10 COPY TO : 1. (I) SHRI VEMULA NARASIMHA RAO C/O P. MURALI & CO. CHARTERED ACCOUNTANTS 6 - 3 - 655/2/3 1 ST FLOOR SOMAJIGUDA HYDERABAD 500 082. (II) SHRI VEMULA LAXMI NARAYANA C/O P.MURALI & CO. C.AS 6 - 3 - 655/2/3 1 ST FLOOR SOMAJIGUDA HYDERABAD 500 082 2. ACIT CIRCLE 1 WARANGAL . 3. ACIT RANGE 1 WARANGAL . 4. CIT(A) - 5 HYDERABAD 6. PR.CIT - 3 HYDERABAD 7. D.R. ITAT HYDERABAD. 8. GUARD FILE