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Assistant Commissioner Of Income-Tax v. Greater Noida Industrial Development Authority
High Court Opinion Summary — Tarun Agarwala, J.
Factual and Procedural Background
This group of appeals under section 260A of the Income-tax Act, 1961 concerns reassessment proceedings for the assessment years 2006-07 through 2011-12. The disputes are common and the facts of assessment year 2007-08 are taken as representative.
Proceedings under sections 147 and 148 were initiated after approval under section 151(2), and a notice under section 148 was issued. Upon receipt of that notice the assessee filed a return declaring income of Rs. 1,04,30,38,635 claimed as exempt under section 10(20) (on the basis that the assessee was a local authority). The Assessing Officer held that the assessee was not a local authority and added amounts to total income. The Commissioner of Income-tax (Appeals) affirmed the Assessing Officer's order. The assessee appealed to the Income-tax Appellate Tribunal (the Tribunal), and at Tribunal only one ground (ground No. 5) was pressed: that the Assessing Officer's order was void ab initio because no mandatory notice under section 143(2) had been issued at any stage.
The Tribunal allowed the appeal and quashed the assessment orders, holding that no notice under section 143(2) had been issued and that the defect was incurable. The Department filed the present appeal to the High Court under section 260A.
Legal Issues Presented
- Whether issuance of a notice under section 143(2) of the Income-tax Act is a mandatory jurisdictional requirement for making an assessment under section 143(3)(ii).
- Whether the deeming fiction in section 292BB (dealing with deemed service where the assessee has appeared or cooperated) cures the absence of a notice under section 143(2), and whether section 292BB applies to the assessment years in dispute.
- Whether omission to issue a notice under section 143(2) can be treated as a curable procedural irregularity or is an incurable defect invalidating reassessment orders.
- Whether the Tribunal erred in finding that no notice under section 143(2) had been issued and in quashing the reassessment orders.
Arguments of the Parties
Appellant (Department) — Principal Contentions
- Adequate opportunity was not given to the Department to produce original assessment records before the Tribunal; had opportunity been given, the Department would have produced the records showing a notice under section 143(2) was issued.
- The issuance of notice under section 143(2) is not mandatory because no statutory format is prescribed for such notice.
- Because the assessee participated in the reassessment proceedings, it cannot later object to non-service of notice; reliance placed on section 292BB (deeming fiction) to preclude objections to service.
Respondent (Assessee) — Principal Contentions
- The Assessing Officer never issued a notice under section 143(2) and, therefore, the reassessment orders are void ab initio.
- The absence of a section 143(2) notice is a jurisdictional defect which the deeming fiction in section 292BB cannot cure.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Asst. CIT v. Hotel Blue Moon, (2010) 321 ITR 362 (SC) | Held that omission to issue notice under section 143(2) is not a procedural irregularity and is incurable; requirement of notice under section 143(2) cannot be dispensed with. | The court relied on this Supreme Court decision to support the proposition that issuance of a section 143(2) notice is essential and that omission cannot be cured. |
| CIT v. Salatpur Cold Storage (P.) Ltd., [2014] 50 taxmann.com 105 (All) | Division Bench consistent view that notice under section 143(2) is mandatory. | Referred to as part of a line of decisions affirming the mandatory nature of section 143(2) notice. |
| CIT v. Adarsh Travel Bus Service, [2012] 17 taxmann.com 140 (All) | Division Bench view in support of mandatory requirement of section 143(2) notice. | Used to show consistency of the High Court's Division Bench decisions with the principle that section 143(2) notice is mandatory. |
| CIT v. Mukesh Kumar Agrawal, (2012) 345 ITR 29 (All) | Similar view on mandatory nature of section 143(2) notice. | Cited as corroborative authority that omission to issue notice is a fatal defect. |
| CIT v. Rajeev Sharma, [2010] 192 Taxman 197 (All); (2011) 336 ITR 678 (All) | Held that notice under section 143(2) is mandatory and omission is fatal. | Referenced to demonstrate consistent application of the principle by this court. |
| R.K. Upadhyaya v. Shanabhai P. Patel, (1987) 166 ITR 163 (SC) | Explained distinction between issuance of notice and service of notice; issuance within limitation vests jurisdiction, while service is a condition precedent to making the assessment order. | The court relied on this decision to explain that "issue" of notice is the essential requirement for jurisdiction under the 1961 Act, and that section 292BB pertains to service rather than issuance. |
| J.P. Jani, ITO v. Induprasad Devshanker Bhatt, (1969) 72 ITR 595 (SC) | Referenced in R.K. Upadhyaya to illustrate earlier Supreme Court views on notices and jurisdiction under prior statute. | Used in the opinion's discussion (via R.K. Upadhyaya) to support the distinction between issue and service under the 1961 Act. |
| CIT v. Robert J. Sas, [1963] 48 ITR (S.C) 177 | Earlier authority referenced in R.K. Upadhyaya regarding notice and jurisdiction. | Appears in the chain of precedents establishing the legal distinction relied on by the court. |
| Banarsi Debi v. ITO, (1964) 53 ITR 100 (SC) | Earlier decision under the 1922 Act discussed in R.K. Upadhyaya; distinguished from the scheme of the 1961 Act. | Referred to (and distinguished) to explain why the reasoning under the 1922 Act does not control interpretation of notice provisions in the 1961 Act. |
Court's Reasoning and Analysis
The court examined the textual provisions of section 143(2) and related subsections. It observed that clause (ii) of subsection (2) requires the Assessing Officer, if he considers it necessary or expedient to verify the return, to serve on the assessee a notice requiring attendance or production of evidence. The proviso to clause (ii) prescribes a time limit for service of such notice (no notice after six months from the end of the financial year in which the return is furnished).
The court analysed the relationship between issuance and service. It noted that the jurisdiction to make an assessment under section 143(3)(ii) is premised on the issuance of a notice under section 143(2)(ii) and that the proviso requires that such a notice be served within the specified time. The court relied on the Supreme Court decision in Asst. CIT v. Hotel Blue Moon to affirm that omission to issue a section 143(2) notice is not a curable procedural irregularity and that the requirement cannot be dispensed with.
The Department’s supplementary affidavit alleged that a notice dated December 10, 2013 (accompanying a questionnaire) was the section 143(2) notice. The court inspected the original assessment records and found that the document in question was expressly a notice under section 142(1), not section 143(2). The record contained no other notice that could be treated as a section 143(2) notice. On that factual basis the court concluded that no notice under section 143(2) had ever been issued.
The court addressed the contention that section 292BB (a deeming fiction inserted by the Finance Act, 2008 effective 1 April 2008) precludes objections to service where the assessee has appeared or cooperated. The court explained that section 292BB deals with deemed service (it pertains to "service of notice") and cannot cure the jurisdictional failure of "issuance of notice." By reference to R.K. Upadhyaya v. Shanabhai P. Patel the court emphasised the legal distinction: under the 1961 Act issuance of a notice is the essential requirement to vest jurisdiction, while service is a separate condition precedent to making the assessment order. Because in this case the Assessing Officer did not issue any notice under section 143(2), the deeming fiction in section 292BB (which relates to service) could not operate to validate the assessment.
The court also considered the temporal and applicability aspects of section 292BB. It held that section 292BB (effective 1 April 2008) did not apply to the earlier assessment years 2006-07, 2007-08 and 2008-09; further, it found that section 292BB was not available to save the reassessments for 2009-10, 2010-11 and 2011-12 because the initial requirement of issuance of a section 143(2) notice never arose.
Finally, the court commented on procedural conduct: it rejected the Department's complaint that the Tribunal did not give adequate opportunity to produce records because there was no affidavit from the Departmental representative disputing the Tribunal's findings. The court found the Department's assertion (in paragraph 16 of the supplementary affidavit) that a section 143(2) notice had been issued to be erroneous, and described the Department's attempt as an unacceptable tactic.
Holding and Implications
Holding: The court concluded that the Assessing Officer failed to issue a notice under section 143(2) of the Income-tax Act and therefore had no jurisdiction to proceed under section 143(3). The deeming fiction in section 292BB cannot cure the absence of issuance of a section 143(2) notice. Consequently, the Tribunal was justified in quashing the assessment orders and the appellate orders upheld by the Tribunal.
DISMISSED — All the appeals filed by the Department fail and are dismissed.
Implications: The direct effect is that the reassessment orders for the assessment years in controversy were set aside. The court found no substantial question of law arising for its consideration. The decision applies existing principles (as explained above) to the facts before the court; the opinion does not purport to create a new legal principle beyond applying and reconciling existing authorities on (i) the mandatory nature of section 143(2) issuance and (ii) the limited reach of section 292BB as a deeming fiction relating to service only.
This summary is prepared strictly from the contents of the provided opinion and does not add information beyond the text of that opinion.
Tarun Agarwala, J.:— This group of appeals under section 260A of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) relates to the reassessment’ proceedings for the assessment years 2006-07, 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12. The dispute in ail these assessment years is common and are, accordingly, being decided together. For facility, the facts of the assessment year 2007-08 is being taken into consideration.
2. Proceedings under sections 147, 148 of the Act was initiated after obtaining approval from the Joint Commissioner of Income-tax under section 151(2) of the Act, pursuant to which notice under section 148 of the Act was issued. Upon receipt of the notice under section 148 of the Act, a return of income was filed declaring an income of Rs. 1,04,30,38,635, which was claimed as exempted under section 10(20) of the Act. The Assessing Officer, after considering the matter, passed an assessment order holding that the assessee was not a local authority as per section 10(20) of the Act and added the surplus income and expenditure of the account and few other amounts on the total income. Aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the Commissioner of Income-tax (Appeals), who dismissed the appeal and affirmed the order of the assessing authority holding that the exemption claimed by the assessee under section 10(20) was not tenable as it was not a local authority within the meaning of section 10(20) of the Act. The assessee, being aggrieved, filed a second appeal before the Income-tax Appellate Tribunal on various grounds. However, at the time of consideration of appeal only ground No. 5 was attacked, namely:
“That the order of learned Assessing Officer is void ab initio inasmuch as no mandatory notice under section 143(2) of the Income-tax Act, 1961, was issued at any stage of the assessment proceedings.”
3. The Tribunal allowed the appeal and quashed the assessment orders passed by the Assessing Officer as well as the order of the appellate authority holding that the Assessing Officer had wrongly passed a reassessment order for all the assessment years. The Tribunal held that the mandatory requirement of issuance of a notice under section 143(2) was not followed and, therefore, it was incurable and that the defect in the assumption of jurisdiction by the Assessing Officer could not be cured by taking recourse to the deeming fiction under section 292BB of the Act. The Department, being aggrieved by the order of the Tribunal, has filed the present appeal under section 260A of the Act.
4. The Tribunal, while allowing the appeal and holding that no notice under section 143(2) was issued, came to this conclusion on the basis of the inspection of the records and the notings of the order-sheet made by the assessee as well as on account of the fact that in spite of time being granted, the Department failed to produce the original records of the assessment proceedings. The Tribunal further found that the Department had not factually controverted the claim of the assessee, namely, that no notice under section 143(2) of the Act was ever issued.
5. Sri Ashok Kumar, the learned counsel for the Department, contended that adequate opportunity was not given to the Department to produce the original assessment records and had a proper opportunity being given, the Department would not only have produced the record but would have satisfied the Tribunal that a notice under section 143(2) of the Act was issued to the assessee. It was also contended that the requirement of issuance of notice under section 143(2) of the Act was not a mandatory requirement as no format has been provided under the Act or the Rules for the issuance of the notice. Further, the assessee participated in the reassessment proceedings and, therefore, could not assert at the stage of the Tribunal that notice was not served under section 143(2) of the Act. It was contended that in view of section 292BB of the Act, the assessee, after having participated in the proceeding under section 143(2) of the Act, could not contend that the entire reassessment proceedings were a nullity on the ground that the notice was not served.
6. In this background, we have heard Sri Ashok Kumar, the learned counsel for the appellant and Sri Balbir Singh, the learned senior advocate assisted by Sri Abhinav Mehrotra for the assessee.
7. In order to settle the controversy, we directed the Department by our order dated July 8, 2015, to produce the original assessment records as well as the order-sheet of the Tribunal.
8. A supplementary affidavit was filed by the Department to show that on the basis of the order-sheet of the Tribunal, adequate opportunity was not given, inasmuch as the order-sheet was silent on the question of production of the original records. In paragraph 16 of the supplementary affidavit, it was urged that a notice was issued by the Assessing Officer even though it was not specifically mentioned in the order-sheet and that the notice and the questionnaire was available in the assessment record. For facility, paragraph 16 of the supplementary affidavit is quoted hereunder:
“That in fact while issuing the questionnaire on December 10, 2013, the assessing authority has issued the notice but in the ordersheet it has not been mentioned specifically. The notices and questionnaire are well available in the assessment record.”
9. In order to understand the controversy as to whether a notice under section 143(2) of the Act is essential to be issued and served upon the assessee in reassessment proceedings it would be appropriate to refer to the said section. For facility, the provisions of section 143(2) of the Act is extracted hereunder:
“143. (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,—
(i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim:
Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003;
(ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return:
Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.”
10. Under clause (ii) of sub-section (2) of section 143, the Assessing Officer is required to serve, on the assessee, a notice requiring him to attend the office or to produce evidence on which the assessee may rely in support of the return, if the Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner. Under the proviso to clause (ii), it has been specified that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. Service on the assessee of a notice within the period prescribed by the proviso presupposes the issuance of a notice for, it is only when a notice is issued, that it can be served. Thereafter, the provisions of sub-section (3) of section 143 of the Act stipulate that on the date specified in the notice issued under clause (ii) of sub-section (2) of section 143 of the Act, the Assessing Officer shall, after hearing the evidence as the assessee may produce and considering such, other evidence as he may require and upon taking into account all relevant material, by an order in writing make an assessment of the total income or loss of the assessee.
11. The jurisdiction of the Assessing Officer to make an assessment under section 143(3)(ii) of the Act is premised on the issuance of a notice under clause (ii) of section 143(2) of the Act. The proviso to clause (ii) of sub-section (2) of section 143 of the Act stipulates that a notice must be served on the assessee not later than the expiry of six months from the end of the financial year in which the return has been furnished. If a notice is not even issued within the period of six months from the end of the financial year in which the return is furnished, there would be no occasion to serve it upon the assessee within the stipulated period.
12. The Supreme Court in Asst. CIT v. Hotel Blue Moon, (2010) 321 ITR 362 (SC), while considering the provision of Chapter XIV-B of the Act in relation to block assessments considered the effect of section 143(2) of the Act and held (page 369):
“But section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under section 143(2). However, if an 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 the date of filing of block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with.”
13. The Supreme Court clearly held that omission on the part of the Assessing Officer is not a procedural irregularity and is incurable and, therefore, the requirement of notice under section 143(2) of the Act cannot be dispensed with.
14. Similar view was held by a Division Bench of this court in CIT v. Salatpur Cold Storage (P.) Ltd., [2014] 50 taxmann.com 105 (All), CIT v. Adarsh Travel Bus Service, [2012] 17 taxmann.com 140 (All) as well as in CIT v. Mukesh Kumar Agrawal, (2012) 345 ITR 29 (All) and CIT v. Rajeev Sharma, [2010] 192 Taxman 197 (All); (2011) 336 ITR 678 (All).
15. In the light of the aforesaid decisions, it is apparently clear that the jurisdiction of the Assessing Officer to make an assessment under section 143(3)(ii) of the Act is based on the issuance of a notice under section 143(2)(ii) of the Act. The proviso to clause (ii) of sub-section (2) of section 143 clearly stipulates that a notice must be served on the assessee.
16. In the light of the aforesaid, we have to see as to whether the word “notice” specified in paragraph 16 of the supplementary affidavit is in fact a notice issued under section 143(2) of the Act. The learned counsel was directed to show the said notice from the original assessment records. The relevant notice was shown to the court. The notice which has been mentioned in paragraph 16 of the supplementary affidavit is a notice dated December 10, 2013, which accompanies the questionnaire dated December 10, 2013. The last paragraph of the questionnaire indicates that the accompanying notice is being issued under section 142(1) of the Act. From the said notice, it is clear that the notice which the appellant is asserting to be a notice under section 143(2) is patently erroneous and mischievous. It is nothing else but a notice under section 142(1) of the Act. The record does not indicate any other notice being issued, which could purport to be one under section 143(2) of the Act. We are, therefore, of the opinion that from a perusal of the original assessment record, we find that no notice under section 143(2) of the Act was ever issued.
17. The submission of the learned counsel for the appellant that the assessee had participated in the reassessment proceedings and, therefore, cannot assert that the notice was not served in view of section 292BB is patently erroneous. For facility, section 292BB of the Act is extracted hereunder:
“2923B. 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—
(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 shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.”
18. Section 292BB of the Act was inserted by the Finance Act, 2008, with effect from 1 April 2008. Section 292BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or co-operated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the assessee, has been duly served upon him in time in accordance with the provisions of the Act. The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him; or (ii) not served upon him in time; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to section 292BB of the Act, however, carves out an exception to the effect that the section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under section 143(3) of the Act, it is necessary to issue a notice under section 143(2) of the Act and in the absence of a notice under section 143(2) of the Act, the assumption of jurisdiction itself would be invalid.
19. In view of the aforesaid, we are of the opinion that section 292BB, which was inserted with effect from April 1, 2008, is not applicable to the proceedings for the assessment years 2006-07, 2007-08, 2008-09. We are also of the opinion that section 292BB of the Act is not applicable also for the assessment years 2009-10, 2010-11 and 2011-12. The deeming fiction that once an assessee has appeared in any proceeding or participated in any query relating to assessment or reassessment, it shall be deemed that the notice under the provisions of the Act, which is required to be served has been duly served upon him in accordance with the provisions of the Act and, therefore, is precluded from contending that the notice was not served upon him or was not served upon him in time or was not served upon him in a proper manner, in our view, is not applicable for the following reason.
20. There is a clear distinction between “issue of notice” and “service of notice”. In R.K Upadhyaya v. Shanabhai P. Patel., (1987) 166 ITR 163 (SC), the controversy was that a notice under section 148 was issued on March 31, 1970, i.e, the last date of limitation, which notice was served on the assessee on April 3, 1970, after the expiry of limitation. The High Court held that since the notice was served after the expiry of the period, the assessment order was invalid and had, accordingly, quashed the notice for reassessment issued under section 147 of the Income-tax Act, 1961. The Supreme Court held that the scheme of the 1961 Act in so far as the notice for reassessment was concerned was quite different than that contained under section 34 of the Indian Income-tax Act, 1922. The Supreme Court held that a clear distinction has been made between “issue of notice” and “service of notice” under the Act. The Supreme Court held that once a notice is issued within the period of limitation, the Income-tax Officer gets the jurisdiction to proceed to reassess and make the assessment order. The mandate of section 148(1) of the Act is that reassessment shall not be made until there has been a service of notice which is a condition precedent to making an order of assessment. The Supreme Court further held that the requirement of issue of notice is satisfied when a notice is actually issued and that service under the Act, 1961, is not a condition precedent to conferment of jurisdiction on the Income-tax Officer to deal with the matter but it is only a condition precedent to the making of the order of assessment. The Supreme Court held (page 165):
“Section 34, conferred jurisdiction on the Income-tax Officer to reopen an assessment subject to service of notice within the prescribed period. Therefore, service of notice within limitation was the foundation of jurisdiction. The same view has been taken by this court in J.P Jani, ITO v. Induprasad Devshanker Bhatt, (1969) 72 ITR 595 (SC) as also in CIT v. Robert J. Sas, [1963] 48 ITR (S.C) 177. The High Court in our opinion went wrong in relying upon the ratio of Banarsi Debi v. ITO, (1964) 53 ITR 100 (SC) in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149 in the 1961 Act. A clear distinction has been made out between ‘issue of notice’ and ‘service of notice’ under the 1961 Act. Section 149 prescribe the period of limitation. It categorically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued. In this case, admittedly, the notice was issued within the prescribed period of limitation as March 31, 1970, was the last day of that period. Service under the new Act is not a condition precedent to conferment of jurisdiction on the Income-tax Officer to deal with the matter but it is a condition precedent to making of the order of assessment. The High Court in our opinion lost sight of the distinction and under a wrong basis felt bound by the judgment in Banarsi Debi v. ITO, (1964) 53 ITR 100 (SC). As the Income-tax Officer had issued notice within limitation, the appeal is allowed and the order of the High Court is vacated. The Income-tax Officer shall now proceed to complete the assessment after complying with the requirements of law. Since there has been no appearance on behalf of the respondents, we make no orders for costs.”
21. From the aforesaid, it is clear that the essential requirement is “issuance of notice” under section 143(2) of the Act. The deeming fiction under section 292BB of the Act is with regard to “service of notice”. Since the initial requirement of issuance of notice was not made by the Assessing Officer, the deeming fiction of service of notice under section 292BB of the Act, consequently, does not arise and is not applicable.
22. In the light of the aforesaid, since the Assessing Officer failed to issue notice within the specified period under section 143(2) of the Act, the Assessing Officer had no jurisdiction to assume jurisdiction under section 143(2) of the Act and this defect cannot be cured by taking recourse to the deeming fiction provided under section 292BB of the Act. Consequently, the Tribunal was justified in setting aside the order of the Assessing Officer as well as the order of the appellate authority. The contention that adequate opportunity was not given to the appellant before the Tribunal now becomes redundant in view of the specific finding given by us on the issuance of the notice under section 143(2) of the Act. However, we must observe that the appellant was not fair to the court in alleging that no proper opportunity was given or that the Tribunal gave no directions to the Department to produce the original records. We are constrained to observe that there is no affidavit of the Departmental representative who had appeared before the Tribunal to state on oath that the observations made by the Tribunal with regard to the production of the original records at the stage of hearing of the stay application and, thereafter, was perverse. In the absence of any affidavit being filed, it was not open for the Department to allege that no proper opportunity was given. Further, we find that the assertion made in paragraph 16 of the supplementary affidavit that a notice was issued is patently erroneous and, an attempt was made by the Department to deceive the court. The notice asserted in paragraph 16 of the supplementary affidavit is not a notice under section 143(2) of the Act but is only a notice issued under section 142(1) of the Act. Such tactics adopted by the Department is totally deplorable.
23. In the light of the aforesaid, no substantial question of law arises for consideration. All the appeals fail and are dismissed.
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