TMI Blog2017 (11) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... nder:- 6.2 I have considered the above submission of the appellant and it is mentioned in the assessment order that in response to notices u/s. 143(2) and 142(1) dated 24.01.2014, Shri Jaswant Kalidhar, brother of the appellant attended the re-assessment proceedings and furnished return. The reply submitted by the appellant has been considered during the course of re-assessment proceedings. Therefore, it is very obvious that the appellant cooperated during the course of re- assessment proceedings and did not challenge delay in the issue of notice u/s. 143(2). As per the provisions of Section 292BB of Income Tax Act notice u/s. 143(2) is deemed to be valid where assessee has appeared in the proceedings and cooperated in the inquiry related to re assessment provided the objections to the delay in notice are raised before the completion of re-assessment. For purpose of clarity the provisions of Section 292BB of Income Tax Act are reproduced below:- When 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome originally filed as a ROI filed in response to the Notice u/s. 148 dated 30.3.2010. 4. On this factual matrix, I find that the issue is squarely covered in favour of the assessee and against the Revenue. The ITAT, C Bench, Bangalore in its order dated 10.10.2014 in the case of Shri GN Mohan Raju vs. ITO passed in ITA No. 242 243(Bang)2013 (AYrs 2006-07 2007-08), has been held as follows:- 7. This brings us to the crux of the issue i.e. whether notices under section 143(2) is mandatory in a reopened procedure and whether notices issued prior to the reopening would satisfy the requirement specified u/s 143(2) of the Act. That issue of a notice u/s 143(2) of the Act, is mandatory even in a re-assessment proceeding initiated u/s 148 of the Act has been clearly laid down by the Hon'ble Delhi High Court in the case of M/s Alpine Electronics Asia PTE Ltd., (supra). Hon'ble Delhi High Court had reached this conclusion after considering the decision of the Hon'ble Apex Court in the case of Hotel Blue Moon (supra). At para-24 of the judgment their Lordship has held that Section 143(2) was applicable to a proceedings u/s 147/148 also, since proviso to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars 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(1), 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 under paid he tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his officer 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). Once the original return filed by the assessee was subject to processing u/s 143(1) of the Act, the procedure of assessment pursuant to such a return, in our opinion came to an end, since AO did not issue any notice within the 6 months period mentioned in proviso to section 143(2)(ii). No doubt, if the income has been understated or the income has escaped as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated. - ITAT, E Delhi Bench decision dated 08.4.2015 passed in the case of ITO vs. Naseman Farms Pvt. Ltd. Ors. In ITA No. 1175/Del/2011 (AY 2002-03) wherein the Tribunal has followed the decision of the Apex Court in the case of ACIT vs. Hotel Blue Moon (2014) 321 ITR 362 (SC). The Tribunal has held as under:- 15. In the light of the above, we are of the view that the AO has not issued notice u/s. 143(2) of the Act which is mandatory. We are also of the view that in completing the assessment u/s. 148 of the Act, compliance of the procedure laid down u/s. 142 and 143(2) is mandatory. As per record, we find that there was no notice issued u/s. 143(2) of the Act which is very much essential for reassessment and it is a failure on the part of the AO for not complying with the procedure laid down in section 143(2) of the Act. If the notice is not issued to the assessee before completion of the assessment, then the reassessment is not sustainable in the eyes of law and deserves to be cancelled. In view of above facts and circumstances of the present case, the issue in dispute raised in additional ground relating to non issue of the mandatory notice u/s. 143(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r issuing notice under section 148 of the Income Tax Act, 1961. This Court in the case of The Commissioner of Income Tax Vis. Mr. Salman Khan [Income Tax Appeal No.2362 of 2009)decided on 1st December, 2009 has considered similar question and has held that in the absence of notice under section 143(2) (prior to the insertion of section 292BB), the reassessment order cannot be sustained. In the present case, the reassessment year involved relates to the period prior to the insertion of Section 292BB. In this view of the matter, the appeal is dismissed with no order as to costs. DCIT Vs. M/s Silver Line, ITA No.1809,1504,1505 1506/Del/2013 vii. The Hon'ble ITAT of Agra Bench, in the case of ITO v. Aligarh Auto Centre reported in 152 TTJ (Agra) 767, on an identical issue that of the present issue, has recorded its findings as under: 5. We have considered the rival submissions and the material on record. It is not in dispute that the assessee filed original return of income and at the reassessment proceedings, the assessee contended before the AO that the original return filed earlier may be treated to have been filed in response to the notice u/s. 147, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 292B of the Income-tax Act is only in the cases where the notice under section 143(2) was issued properly and within the period of limitation and the assessee did not raise any objection regarding the service of the notice during the assessment proceedings and also participated in the assessment proceedings then at a later stage the assessee is precluded from raising such objection. Therefore, the provisions of section 292B are not applicable in the case where the assessing officer has not at all issued notice under section 143 (2) within the period as prescribed. 7.9. Taking into account the facts and circumstances of the issue as deliberated upon in the fore-going paragraphs and also in views of the judicial pronouncements (supra), we are of the view that the re-assessment's made for the assessment years under consideration have become invalid for not having served the mandatory notice u/s 43(2) of the Act on the assessee. It is ordered accordingly. 7.10We have since decided that the re-assessment proceedings concluded u/s 147 r/w 143(3) of the Act were invalid for the AYs under dispute, the issues raised by the revenue in its appeals and also the Cross ..... X X X X Extracts X X X X X X X X Extracts X X X X
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