M/s Khushi Commotrade Pvt. Ltd., Kolkata v. PCIT-2, Kolkata

ITA 462/KOL/2020 | 2010-2011
Pronouncement Date: 11-05-2021 | Result: Allowed

Appeal Details

RSA Number 46223514 RSA 2020
Assessee PAN AADCK7829B
Bench Kolkata
Appeal Number ITA 462/KOL/2020
Duration Of Justice 9 month(s) 11 day(s)
Appellant M/s Khushi Commotrade Pvt. Ltd., Kolkata
Respondent PCIT-2, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 11-05-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 11-05-2021
Date Of Final Hearing 05-05-2021
Next Hearing Date 05-05-2021
Last Hearing Date 24-03-2021
First Hearing Date 10-02-2021
Assessment Year 2010-2011
Appeal Filed On 30-07-2020
Judgment Text
1 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) BEFORE . /AND . . ) [BEFORE SHRI J. SUDHAKAR REDDY AM & SHRI A. T. VA RKEY JM] I.T.A. NO. 462/KOL/2020 ASSESSMENT YEAR: 2010-11 KHUSHI COMMOTRADE PVT. LTD. (PAN: AADCK7829B) VS. PRINCIPAL COMMISSIONER OF INCOME-TAX 2 KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 05.05.2021 DATE OF PRONOUNCEMENT 11.05.2021 FOR THE APPELLANT SHRI DEVESH PODDAR ADVOCATE FOR THE RESPONDENT SHRI JOHN VINCENT D. LONGSTICH CIT ORDER PER SHRI A.T.VARKEY JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF LD. PR. CIT-2 KOLKATA PASSED U/S. 263 OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 24.06.2020 FOR A Y 2010-11. 2. AT THE OUTSET THE LD. AR SHRI DEVESH PODDER AD VOCATE DREW OUR ATTENTION TO THE ADDITIONAL GROUND OF APPEAL WHICH IS AS UNDER: FOR THAT THE ORDER PASSED U/S. 263 IS BAD IN LAW TO THE EXTENT THAT THE SAME HAS BEEN PASSED AGAINST AN IN VALID/NULL ORDER PASSED BY ASS ESSING OFFICER U/S. 147/143(3). LD. CIT INTENDS TO RECALL AND SET ASIDE AND ORDER PASSE D BY LD. AO U/S. 147/143(3) WHICH HAS BEEN COMPLETED WITHOUT ISSUE OF NOTICE U/S. 143 (2) IN RESPONSE TO THE RETURN FILED AND AS SUCH SINCE THE INITIAL ASSESSMENT ORDER IS ITSELF NULL AND VOID ORDER PASSED U/S. 263 ON THE SAME IS WITHOUT JURISDICTION AND FIT TO BE QUASHED. THIS FACT EMERGES FROM THE ORDER PASSED BY LD. CIT ITSELF. 3. ACCORDING TO THE LD. AR THE IMPUGNED ORDER OF T HE LD. PR. CIT IS BAD IN LAW SINCE THE RE-ASSESSMENT ORDER PASSED BY THE AO U/S 147/143 OF THE ACT WHICH HE [PCIT] INTENDED TO INTERFERE WAS ITSELF WITHOUT JUR ISDICTION AND THEREFORE NULL IN THE 2 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 EYES OF LAW AND SINCE THE AOS ORDER ITSELF IS NULL IN THE EYES OF LAW MEANING NON-EST IN THE EYES OF LAW CONSEQUENTLY THE LD. PR. CIT CO ULD NOT HAVE INTERFERED BY EXERCISING HIS POWER U/S. 263 OF THE ACT TO AGAIN R ESURRECT THE NON-EST ORDER. SINCE IT IS A PURE LEGAL ISSUE WE NOTE THAT THE SAME CAN BE CHALLENGED BEFORE US AT ANY STAGE AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF NT PC VS. CIT 229 ITR 383 (SC). IN ORDER TO BUTTRESS HIS CHALLENGE RAISED ON THE AF ORESAID LEGAL ISSUE THE LD. AR DREW OUR ATTENTION TO THE FINDING OF THE LD. PR. CIT AT PAGE 3 OF THE IMPUGNED ORDER WHEREIN THE LD. PR. CIT HAS RECORDED A FINDING AS U NDER: 1. 2. THE ORDER WAS PASSED U/S. 143(3)/147 ON 18.09. 2017 BUT NO NOTICE U/S. 143(2) WAS ISSUED BY THE OFFICER AGAINST THE RETURN FILED IN R ESPONSE TO NOTICE U/S. 148 ON 19.04.2017 AS REQUIRED BY THE STATUTE. 4. ACCORDING TO THE LD. AR THE LD. PR. CIT IN ORDE R TO INTERFERE WITH THE REASSESSMENT ORDER OF AO BY EXERCISING HIS POWER U/ S. 263 OF THE ACT HAD FOUND OUT THAT AO OMITTED TO HAVE ISSUED NOTICE U/S. 143(2) O F THE ACT BEFORE FRAMING THE REASSESSMENT ORDER WHEN THE ASSESSEE HAS FILED THE RETURN PURSUANT TO NOTICE U/S. 148 OF THE ACT. THEREFORE ACCORDING TO THE LD. AR TH E ASSESSMENT ORDER FRAMED BY THE AO DATED 25.07.2017 U/S. 143(3)/147 OF THE ACT WITH OUT ISSUING MANDATORY NOTICE U/S 143(2) OF THE ACT WAS WITHOUT JURISDICTION AND THE REFORE NULL IN THE EYES OF LAW AND CONSEQUENTLY THE LD. PR. CIT CANNOT REVISE THE ORD ER WHICH IS NOT EXISTING IN THE EYES OF LAW (I.E. AOS ORDER DATED 25.07.2017). THE REFORE HE PRAYED THAT THE IMPUGNED ORDER MAY BE QUASHED. 5. PER CONTRA THE LD. CIT DR SHRI JOHN VINCENT D. LONGSTICH SUBMITTED THAT SINCE THE ASSESSEE HAS ALREADY TAKEN PART IN THE PR OCEEDINGS BEFORE THE AO HE CANNOT NOW TURNAROUND AND CHALLENGE THE NON-ISSUANCE OF NO TICE U/S. 143(2) OF THE ACT BECAUSE AOS ACTION OF FRAMING RE-ASSESSMENT ORDER IS SAVED BY SECTION 292BB OF THE ACT AND THEREFORE THE LD. CIT DR DOES NOT WA NT US TO INTERFERE WITH THE IMPUGNED ORDER PASSED BY THE LD. PR. CIT. 6. HAVING HEARD BOTH THE PARTIES AND AFTER PERUSAL OF THE RECORDS WE NOTE THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT V HOTEL BLUE MOON (2010) 321 ITR 362 3 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 (S.C) HAS HELD THAT BEFORE THE SCRUTINY ASSESSMENT IS MADE U/S. 143(3) OF THE ACT THE ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT IS MANDAT ORY WHICH IS APPLICABLE ALSO IN THE CASE OF REOPENING OF ASSESSMENT ONCE THE ASSESSEE H AS FILED RETURN PURSUANT TO NOTICE U/S. 148 OF THE ACT. IN THIS CASE IN THE IMPUGNED ORDER ITSELF THE LD. PR. CIT HAS CLEARLY GIVEN A FINDING OF FACT THAT THE AO HAS NOT ISSUED NOTICE U/S. 143(2) OF THE ACT AFTER THE EVENT OF THE ASSESSEE HAVING FILED THE RE TURN OF INCOME PURSUANT TO THE NOTICE U/S. 148 OF THE ACT ON 19.04.2017 (SUPRA). IN SUCH A SCENARIO WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE AO WHILE PASSIN G THE ORDER U/S. 147/143(3) OF THE ACT ON 25.07.2017 HAS NOT ISSUED NOTICE U/S. 143(2) OF THE ACT. AND THEREFORE TH E MANDATORY REQUIREMENT OF LAW TO USURP THE JURISDICT ION TO FRAME THE ASSESSMENT U/S. 143(3)/147 OF THE ACT PURSUANT TO REOPENING IS ABS ENT AND THEREFORE THE LEGAL EFFECT IS THAT THE ORDER OF THE AO DATED 25.07.2017 IS NUL L IN THE EYES OF LAW. 7. THE LD. CIT DR HAS CONTENDED THAT SINCE THE ASS ESSEE HAS PARTICIPATED IN THE REASSESSMENT PROCEEDING WHICH CULMINATED IN THE ORD ER DATED 25.07.2017 SECTION 292BB COMES TO THE RESCUE OF THE AO TO PASS THE ORD ER. WE DO NOT AGREE TO THE AFORESAID SUBMISSION OF THE LD. DR SINCE SECTION 292BB IS ONLY SAFEGUARDING THE DEFICIENCY IF ANY OF THE SERVICE/NON-SERVICE OF NOT ICE AND IT DOES NOT CURE THE OMISSION OF ISSUANCE OF MANDATORY NOTICE BY THE AO . AND SINCE IN THIS CASE THE AO HAS NOT ISSUED THE MANDATORY NOTICE U/S 143(2) OF T HE ACT AS FOUND BY THE LD. PR. CIT THE QUESTION OF SECTION 292BB COMING TO THE R ESCUE OF THE AO TO PASS THE REASSESSMENT ORDER DOES NOT ARISE. FOR THIS WE REL Y ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. LAXMAN DAS KHA NDELWAL CIVIL APPEAL NOS. 6261-6262 OF 2019 DATED 13.08.2019 WHEREIN THE HON BLE SUPREME COURT HAS TAKEN CARE OF THE SIMILAR PLEA OF THE DEPARTMENT AND REPE LLED THE SAME BY HOLDING AS UNDER: 3. THE RELEVANT FACTS LEADING TO THE FILING OF AF OREMENTIONED INCOME TAX APPEAL NO.97 OF 2018 BEFORE THE HIGH COURT AS CULL ED OUT FROM THE JUDGMENT AND ORDER DATED 27.04.2018 PRESENTLY UNDER APPEAL ARE A S UNDER:- THE ASSESSEE IS AN INDIVIDUAL CARRYING A BUSINESS OF BROKERAGE. SEARCH AND SEIZURE OPERATION WAS CONDUCTED UNDER SECTION 132 O F THE ACT OF 1961 ON 11.03.2010 AT HIS RESIDENTIAL PREMISES. THE ASSESSEE SUBMITTED RETURN OF INCOME ON 24.08.2011 DECLARING TOTAL INCOME OF RS.9 35 130/-. THE ASSESS MENT WAS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 153(D) OF 1961 ACT. RUPEES 9 09 110/- WAS ADDED ON ACCOUNT OF UNEXPLAINED CASH UNDER SECTION 69 OF 196 1 ACT. RS.15 09 672/- WAS ADDED 4 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 ON ACCOUNT OF UNEXPLAINED JEWELLERY. RUPEES 45 00 0 00/- WAS ADDED ON ACCOUNT OF UNEXPLAINED HUNDIES AND RS.29 53 631/- WAS ADDED ON ACCOUNT OF UNEXPLAINED CASH RECEIPTS. AGGRIEVED THE ASSESSEE FILED AN APPEAL B EFORE THE COMMISSIONER INCOME TAX (APPEAL). THE COMMISSIONER OF INCOME TAX (APPEAL) D ELETED AN AMOUNT OF RS.7 48 463/- HOLDING THAT JEWELLERY FOUND IN LOCKE R WEIGHING 686.4 GMS STOOD EXPLAINED IN VIEW OF CIRCULAR NO.1916 AND FURTHER D ELETED THE ADDITION OF RS.29 23 98 117/- OUT OF RS.29 53 52 631/- HOLDING THAT THE CORRECT APPROACH WOULD BE TO APPLY THE PEAK FORMULA TO DETERMINE IN SUCH TRAN SACTION WHICH COMES TO RS.29 54 514/- AS ON 05.03.2010. AGGRIEVED REVENUE FILED AN APPEAL. THE ASSESSEE FI LED CROSS OBJECTION ON THE GROUND OF JURISDICTION OF ASSESSMENT OFFICER REGARD ING NON ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT OF 1961. THE TRIBUNAL VID E IMPUGNED ORDER UPHELD THE CROSS OBJECTION AND QUASHED THE ENTIRE REASSESSMENT PROCE EDINGS ON THE FINDING THAT THE SAME STOOD VITIATED AS THE ASSESSMENT OFFICER LACKE D JURISDICTION IN ABSENCE OF NOTICE UNDER SECTION 143(2) OF THE ACT OF 1961. THE TRIBUN AL OBSERVED: 17. IN CONCLUSION WE FIND THAT THERE WAS NO NOTIC E ISSUED U/S 143(2) PRIOR TO THE COMPLETION OF ASSESSMENT UNDER SECTION 143 (3) OF T HE ACT BY THE AO; THAT THE YEAR UNDER CONSIDERATION WAS BEYOND THE SCOPE OF THE PRO VISIONS OF SECTION 143A OF THE ACT IT BEING THE SEARCH YEAR AND NOT COVERED IN TH E SIX YEAR TO THE YEAR OF SEARCH AS PER THE ASSESSMENT SCHEME/PROCEDURE DEFINED U/S 153 A; THAT THE AO HAS PASSED REGULAR ASSESSMENT U/S 143(3) OF THE ACT; ALTHOUGH THE ID. CIT HAS MENTIONED THE SECTION AS 143 R.W.S. 153A AND THAT THE DEPARTMENT HAD NOT CONTROVERTED THESE FACTS AT THE STAGE OF HEARING. IT IS NOTED THAT ISSUE OF NOT ICE U/S 143(2) FOR COMPLETION OF REGULAR ASSESSMENT IN THE CASE OF THE ASSESSEE WAS A STATUTORY REQUIREMENT AS PER THE PROVISIONS OF THE ACT AND NON ISSUANCE THEREOF IS N OT A CURABLE DEFECT. EVEN IN CASE OF BLOCK ASSESSMENT U/S 158BC IT HAS BEEN SO HELD BY THE APEX COURT IN THE CASE OF ACIT V. HOTEL BLUE MOON (2010) 321 ITR 362 (SUPRA ). 4. IN SAID APPEAL ARISING FROM THE DECISION OF THE INCOME TAX APPELLATE TRIBUNAL (THE TRIBUNAL FOR SHORT) THE ISSUE THAT AROSE BEFORE THE HIGH COURT WAS THE EFFECT OF ABSENCE OF NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT 1961 (THE ACT FOR SHORT). THE RESPONDENT-ASSESSEE RELIED UPON THE DEC ISION OF THIS COURT IN ASSISTANT COMMISSIONER OF INCOME TAX AND ANOTHER VS. HOTEL BL UE MOON2 . ON THE OTHER HAND RELIANCE WAS PLACED BY THE APPELLANT ON THE PROVISI ONS OF SECTION 292BB OF THE ACT TO SUBMIT THAT THE RESPONDENT HAVING PARTICIPATED IN T HE PROCEEDINGS THE DEFECT IF ANY STOOD COMPLETELY CURED. 5. AT THE OUTSET IT MUST BE STATED THAT OUT OF TWO QUESTIONS OF LAW THAT AROSE FOR CONSIDERATION IN HOTEL BLUE MOONS CASE2 THE FIRST QUESTION WAS WHETHER NOTICE UNDER SECTION 143(2) WOULD BE MANDATORY FOR THE PURPOSE OF MAKING THE A SSESSMENT UNDER SECTION 143(3) OF THE ACT. IT WAS OBSERVED:- 3. THE APPELLATE TRIBUNAL HELD WHILE AFFIRMING TH E DECISION OF CIT (A) THAT NON- ISSUE OF NOTICE UNDER SECTION 143(2) IS ONLY A PROCEDURAL IRREGULARITY AND THE SAME IS CURABLE. IN THE APPEAL FILED BY THE ASSESSEE BEFORE THE GAUHATI HIGH COURT THE FOLLOWING TWO QUESTIONS OF LAW WERE RAISED FOR CONS IDERATION AND DECISION OF THE HIGH COURT THEY WERE: (1) WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF T HE CASE THE ISSUANCE OF NOTICE UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 WITHIN THE PRESCRIBED TIME- LIMIT FOR THE PURPOSE OF MAKING THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 IS MANDATORY? AND (2) WHETHER ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE 5 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 AND IN VIEW OF THE UNDISPUTED FINDINGS ARRIVED AT B Y THE COMMISSIONER OF INCOME TAX (APPEALS) THE ADDITIONS MADE UNDER SECTION 68 OF THE INCOME TAX ACT 1961 SHOULD BE DELETED OR SET ASIDE? 4. THE HIGH COURT DISAGREEING WITH THE TRIBUNAL H ELD THAT THE PROVISIONS OF SECTION 142 AND SUB-SECTIONS (2) AND (3) OF SECTION 143 WILL HAVE MANDATORY APPLICATION IN A CASE WHERE THE ASSESSING OFFICER IN REPUDIATION OF RETURN FILED IN RESPONSE TO A NOTICE ISSUED UNDER SECTION 158-BC(A) PROCEEDS TO MAKE AN INQUIRY. ACCORDINGLY THE HIGH COURT ANSWERED THE QUESTION OF LAW FRAMED IN AFFIRM ATIVE AND IN FAVOUR OF THE APPELLANT AND AGAINST THE REVENUE. THE REVENUE THER EAFTER APPLIED TO THIS COURT FOR SPECIAL LEAVE UNDER ARTICLE 136 AND THE SAME WAS GRANTED AND HENCE THIS APPEAL. 13. THE ONLY QUESTION THAT ARISES FOR OUR CONSIDERA TION IN THIS BATCH OF APPEALS IS: WHETHER SERVICE OF NOTICE ON THE ASSESSEE UNDER SECTION 143(2) WITHIN THE PRESCRIBED PERIOD OF TIME IS A PREREQUISITE FOR FRAMING THE BL OCK ASSESSMENT UNDER CHAPTER XIV-B OF THE INCOME TAX ACT 1961? 27. THE CASE OF THE REVENUE IS THAT THE EXPRESSION SO FAR AS MAY BE APPLY INDICATES THAT IT IS NOT EXPECTED TO FOLLOW THE PROVISIONS OF SECTION 142 SUB-SECTIONS (2) AND (3) OF SECTION 143 STRICTLY FOR THE PURPOSE OF BLOCK ASSESSMENTS. WE DO NOT AGREE WITH THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE REVENUE SINCE WE DO NOT SEE ANY REASON TO RESTRICT THE SCOPE AND MEANING OF THE EXPRESSION S O FAR AS MAY BE APPLY. IN OUR VIEW WHERE THE ASSESSING OFFICER IN REPUDIATION OF THE RETURN FILED UNDER SECTION 158- BC(A) PROCEEDS TO MAKE AN ENQUIRY HE HAS NECESSARI LY TO FOLLOW THE PROVISIONS OF SECTION 142 SUB-SECTIONS (2) AND (3) OF SECTION 143 . 6. THE QUESTION HOWEVER REMAINS WHETHER SECTION 292BB WHICH CAME INTO EFFECT ON AND FROM 01.04.2008 HAS EFFECTED ANY CHANGE. SAID SECTION 292BB IS TO THE FOLLOWING EFFECT:- 292BB. NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUM STANCES. WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY INQ UIRY RELATING TO AN ASSESSMENT OR REASSESSMENT IT SHALL BE DEEMED THAT ANY NOTICE UN DER ANY PROVISION OF THIS ACT WHICH IS REQUIRED TO BE SERVED UPON HIM HAS BEEN DULY SE RVED 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 U NDER THIS ACT THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT. 7. A CLOSER LOOK AT SECTION 292BB SHOWS THAT IF THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS IT SHALL BE DEEMED THAT ANY NOTICE WHIC H IS REQUIRED TO BE SERVED UPON WAS DULY SERVED AND THE ASSESSEE WOULD BE PRECLUDED FROM TAKING ANY OBJECTIONS THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH LEARNED 6 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 SENIOR ADVOCATE SINCE THE RESPONDENT HAD PARTICIPA TED IN THE PROCEEDINGS THE PROVISIONS OF SECTION 292BB WOULD BE A COMPLETE ANSWER. ON THE OTHER HAND MR. ANKIT VIJAYWARGIA LEARNED A DVOCATE APPEARING FOR THE RESPONDENT SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER ISSUED WHICH WAS EVIDENT FROM THE ORDERS PASSED ON RECORD AS WELL AS THE STAND TAKEN BY THE APPELLANT IN THE MEMO OF APPEAL. IT WAS FURTHER SUB MITTED THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING PREREQUISITE IN THE ABSENCE OF SUCH NOTICE THE ENTIRE PROCEEDINGS WOULD BE INVALID. 8. THE LAW ON THE POINT AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN BLU E MOONS CASE2. THE ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS TH E IMPACT OF SECTION 292BB OF THE ACT. 9. ACCORDING TO SECTION 292BB OF THE ACT IF THE ASSESSEE HAD PARTICIPATED IN TH E PROCEEDINGS BY WAY OF LEGAL FICTION NOTICE WOULD BE DEEMED TO BE VALID EVEN IF THERE BE INFRACTIONS AS DETAILED IN SAID SECTION. THE SCO PE OF THE PROVISION IS TO MAKE SERVICE OF NOTICE HAVING CERTAIN INFIRMITIES TO BE PROPER A ND VALID IF THERE WAS REQUISITE PARTICIPATION ON PART OF THE ASSESSEE. IT IS HOWEV ER 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 INFIRM ITIES 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. 10. SINCE THE FACTS ON RECORD ARE CLEAR THAT NO NOT ICE UNDER SECTION 143(2) OF THE ACT WAS EVER ISSUED BY THE DEPARTMENT THE FINDINGS REN DERED BY THE HIGH COURT AND THE TRIBUNAL AND THE CONCLUSION ARRIVED AT WERE CORRECT . WE THEREFORE SEE NO REASON TO TAKE A DIFFERENT VIEW IN THE MATTER. 11. THESE APPEALS ARE THEREFORE DISMISSED. NO COS TS. 8. RESPECTFULLY TAKING NOTE OF THE RATIO OF THE DEC ISION OF THE HONBLE SUPREME COURT IN LAXMAN DAS KANDELWAL (SUPRA) WE FIND NO M ERIT IN THE CONTENTION OF THE LD. DR THAT SECTION 292BB OF THE ACT WOULD CURE THE DEFECT OF NON-ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT AND SINCE THE AO IN THIS CASE HAD NOT ISSUED NOTICE U/S. 143(2) OF THE ACT BEFORE FRAMING THE RE-ASSESSMENT U/S. 143(3)/147 OF THE ACT AS DISCUSSED SUPRA THE ORDER PASSED BY THE AO DATED 2 5.07.2017 U/S 143(3)/147 OF THE ACT IS WITHOUT JURISDICTION AND THEREFORE IS NON- EST IN THE EYES OF LAW AND THEREFORE THE LD. PR. CIT COULD NOT HAVE INTERFERED BY EXERCI SING HIS POWER U/S. 263 OF THE ACT IN RESPECT OF NON-EST ORDER AND THEREFORE HIS ACT ION TO PASS THE IMPUGNED ORDER IS ALSO NULL IN THE EYES OF LAW AND IS QUASHED. 7 ITA NO. 462/KOL/2020 KHUSHI COMMOTRADE PVT. LTD.. AY 2010-11 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11 TH MAY 2021. SD/- SD/- (J. S. REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 11 TH MAY 2021 JD (SR. PS.) COPY FORWARDED TO 1. APPELLANT M/SKHUSHI COMMOTRADE PVT. LTD. ROOM NO . 758 7 TH FLOOR 32 EZRA STREET KOLKATA-700 001. 2. RESPONDENT PR. COMMISSIONER OF INCOME TAX-2 KOLK ATA. 3. ITO WARD-4(4) KOLKATA. 4. DR ITAT KOLKATA. (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA.