TMI Blog2014 (8) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... her it was served correctly or otherwise, would be of no relevance whatsoever - Failure to issue a notice within the prescribed period would result in the AO assuming jurisdiction contrary to law – thus, the order of the Tribunal is upheld – Decided against Revenue. - Income Tax Appeal No. - 24 of 2014 - - - Dated:- 19-8-2014 - Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,CJ And Hon'ble Devendra Kumar Upadhyaya,JJ. For the Appellant : Manish Misra ORDER The appeal by the Revenue under Section 260A of the Income Tax Act, 19611 arises from a decision of the Income Tax Appellate Tribunal2 dated 28 February 2014. The assessment year to which the appeal relates is AY 2008-09. In support of the appeal, the Revenue has pressed the following questions of law at the hearing of the appeal :- 1) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in confirming the order of CIT (A) ignoring the effect of Section 292 BB specially when the assessee had cooperated with the proceedings. 2) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in confirming the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valid assumption of jurisdiction and would be invalid. In the present case, it was noted by the Tribunal that the Assessing Officer had recorded in the order of assessment that a notice under Section 143 (2) of the Act was issued on 6 October 2009 much beyond the period prescribed under Section 143(2) of the Act which was till 30 September 2009. Since no notice under Section 143(2) of the Act was issued within the prescribed period, the Tribunal held that the assessment was not valid. The appeal by the Revenue was consequently dismissed. The submission which was urged on behalf of the Revenue is that the CIT (A) as well as the Tribunal have failed to consider the provisions of Section 292 BB of the Act. That is the submission which falls for consideration in these proceedings. Section 143(2) of the Act provides as follows :- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 no 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. In the present case, the facts which are not in dispute are that the assessee had filed its return of income on 30 September 2008 for AY 2008-09. The notice under Section 143 (2) of the Act ought to have been issued by 30 September 2009 which was the date of the expiry of the period of six months from the end of the financial year in which the return was furnished. A notice was, however, issued on 6 October 2009 much beyond the period of six months. In such a situation, there could be no occasion to serve the notice within six months since the very act of issuance was beyond six months. Now, it is in this backgr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle is no longer in doubt having due regard to the law laid down by the Supreme Court in the decision in Assistant Commissioner of Income Tax Another Vs. M/S Hotel Blue Moon3. While construing the provisions of Chapter XIV-B of the Act in relation to block assessments, the Supreme Court in that decision considered the effect of Section 143 (2) of the Act. The Supreme Court held as follows:- ...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 158-BC, 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. The Supreme Court has, therefore, clearly held that the omission on the part of the As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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