TMI Blog2014 (10) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... g the procedure like issue of notice u/s 143(2)/142 - This does not provide accepting the return as provided under section 143(3) only - If an assessment is to be completed u/s 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 - 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 - 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 - CIT(A) rightly quashed the assessment framed by the AO on the basis of invalid notice u/s 143(2) of the Act – Decided against revenue. - ITA No. 462/Jodh/2013 - - - Dated:- 14-8-2014 - SHRI HARI OM MARATHA AND SHRI N.K. SAINI, JJ. For the Respondent: Shri N.A. Joshi - D.R. ORDER Per: N K Saini: This is an appeal by the Department against the order dated 29/07/2013 of Ld. CIT(A), Udaipur. 2. During the course of hearing, nobody was present on behalf of the assessee nor any adjournment was sought. We, therefore, proceeded to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act was issued to the assessee on 23/09/2010 fixing the date of hearing for 07/10/2010 and thereafter also, other notices were issued u/s. 143(2) of the Act. The assessee stated that the notice dated 23/09/2010 was not received by him. The Assessing Officer, however, framed the assessment by invoking the provisions of section 144 of the Act and observed that the assessee had not complied with the notice issued for the reasons best known to him. The Assessing Officer made the addition of ₹ 5,00,000/- on account of trading addition inclusive of un-admissible expenses and ₹ 32,00,000/- for boring work done outside the books. He did not allow deduction u/s. 80C of the Act for a sum of ₹ 84,759/- and total income was assessed at ₹ 40,49,759/-. 6. Being aggrieved, the assessee carried the matter to the ld. CIT(A) and raised the following additional ground:- The assessment order passed is without jurisdiction which is liable to be quashed being barred by limitation as notice u/s. 143(2) was not issued and served within time allowed. The Ld. CIT(A) asked the Assessing Officer for his comment on the additional ground raised by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as served upon the assessee himself on 24.09.2010 by notice server Shri Jagadish Kumawat. the appellant has verified service of notice and submit that the said notice has been served upon one Bherulal and not upon the appellant. 2. The second notice dated 03.03.2011 fixing the date of hearing for 16.03.2011 was also served upon one Bherulal on 4.3.2011 and not upon the appellant. 3. The third notice dated 06.06.2011 fixing the date of hearing for 15.06.2011 was served on 08.06.2011 to a person initialed similar to the initial of appellant but not served to the appellant. 4. The fourth notice dated 12.07.2011 fixing the date of hearing for 26.07.2011 was also served upon one Bherulal on 14.07.2011 and not upon the appellant. 5. The fifth notice dated 23.09.2011 was again served on 28.0-9.2011 fixing the date of hearing for 05.10.2011 to a person initiated similar to the initial of the appellant but not served upon the appellant. 6. The sixth notice dated 07.10.2011 fixing the date of hearing for 18.09.2011 was served upon the appellant on 11.10.2011 after the date fixed for hearing. The month of September is over written October after cutting on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons on whom the other notices were served, were not identifiable and there was no proof available on the file about claim of the Assessing Officer that notice u/s. 143(2) of the Act dated 23/09/2010 along with the questionnaire was sent and served on the assessee. He, therefore, accepted the claim of the assessee that he had not received any notice u/s. 143(2) of the Act except notice dated 18/11/2011. The Ld. CIT(A) quashed the assessment on the basis of invalid notice u/s. 143(2) of the Act. Now the Department is in appeal. 9. 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 quashing the assessment order passed by the Assessing Officer. 10. At the time of hearing, nobody was present on behalf of the assessee neither any adjournment was sought. However, the learned counsel for the assessee vide letter dated 06/06/2014 has stated that this issue is covered vide order dated 31/10/2013 in I.T.A.No. 263/Jodh/2013 in the case of IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued 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 referred to case, it is crystal clear that the omission on the part of assessing authority to issue notice under section 143(2) of the Act cannot be procedural irregularity and is not curable. Therefore, requirement of notice under section 143(2) of the Act cannot be dispensed with. In the present case, since the Assessing Officer failed to serve the notice under section 143(2) of the Act to the assessee within the stipulated time limit prescribed, therefore, learned CIT(A) rightly quashed the assessment framed by the Assessing Officer on the basis of invalid notice under section 143(2) of the Act. We do not see any merit in this departmental appeal. 12. Since, the facts of the present case are similar to the facts involved in the aforesaid referred to case of Shri Bhuvanesh Maheshwari, Prop. M/s. B. Maheshwari Co., (supra) in I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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