TMI Blog2014 (10) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... that after the return is filed, clause (b) of section 158BC provides that the AO shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and "the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and section145 shall, so far as may be, apply. The omission on the part of assessing authority to issue notice u/s 143(2) of the Act cannot be procedural irregularity and is not curable - Therefore, requirement of notice u/s 143(2) of the Act cannot be dispensed with - since the AO failed to serve the notice u/s 143(2) of the Act to the assessee within the stipulated time limit prescribed, therefore, CIT(A) rightly quashed the assessment framed by the AO on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on 23/09/2010 and thereafter also, other notices were issued under section 143(2) of the Act. The assessee stated that the notice under section 143(2) of the Act dated 23/09/2010 has not been received by him. The Assessing Officer, however, framed the assessment by invoking the provisions of section 144 of the Act by observing that the assessee for the reasons best known to him, had not complied with the terms of the notices. Ultimately, the assessment was framed at an income of ₹ 42,38,457/- by making the various additions. 3. Being aggrieved, the assessee carried the matter to the learned CIT(A) and stated that the assessment order passed was without jurisdiction, so, liable to be quashed being barred by limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot identified None attended 07/10/2011 11/10/2011 18/10/2011 Person not identified None attended 18/11/2011 24/11/2011 25/01/2011 Person not identified Adjournment application filed 4. The assessee stated to the learned CIT(A) that no notice was served upon him. The assessee furnished an affidavit of Shri Bherulal to whom notice was claimed to have been served. In the said affidavit, Shri Bherulal state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 143(2) of the Act. Accordingly, the assessment completed, on the basis of invalid notice under section 143(2) of the Act, was quashed. Now, the department is in appeal. 6. At the time of hearing, nobody was present on behalf of assessee neither any adjournment was sought. We, therefore, proceeded exparte qua the assessee and have considered the submissions of learned D.R. along with material available on record. 7. The only contention of the learned D.R. was that since assessee participated in the assessment proceedings, therefore, as per the provisions of section 292BB of the Act, it was to be presumed that the statutory notice was received by the assessee and, therefore, learned CIT(A) was not justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates that this clause enables the Assessing Officer, after the return is filed, to complete the assessment under section 143(2) by following the procedure like issue of notice under section 143(2)/142. This does not provide accepting the return as provided under section 143(3) only. 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 the block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and is not curable. Therefore, the requirement of notice under section 143(2) cannot be dispensed with. 9. From the ratio laid down in the aforesaid ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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