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2015 (2) TMI 776 - HC - Income TaxReopening of assessment - validity of notice - first and second notice returned as un-served with the report that the assessee had gone out for the medical treatment - third notice was issued after expiry of period of limitation - Curable defect u/s 292B - Notice admittedly remained un-served on the appellant while the entire proceedings were carried out by assuming jurisdiction on the basis of Notice u/s 17.06.2005, which admittedly was issued beyond the period of limitation - bogus entries of sale proceeds of shares - Held that:- The remand report of the Assessing Officer makes it apparently clear that three different notices under Section 148 of the Act were issued on 24.03.2005, 28.03.2005 and 17.06.2005. The first notice dated 24.03.2005 was an invalid notice because no reasons to believe were recorded nor sanction order was obtained by the Assessing Officer. The second notice dated 28.03.2005 was a valid notice but came back unserved and this notice was dropped and no further action was taken on this notice. The third notice, which was issued on 17.06.2005 was issued after the period of limitation and, consequently, was an invalid notice. The Assessing Officer assumes jurisdiction under Section 148 of the Act only upon issuance of a valid notice. Since the notice dated 17.06.2005 was an invalid notice, the assessment order cannot be sustained. Reliance by the Tribunal that the notice dated 17.6.2005 was in fact a notice dated 28.3.2005, which was a curable defect under Section 292B is totally misplaced. Section 292B has no application in the instant case. The notice dated 17.6.2005 could not be treated as a notice dated 28.3.2005 or a notice in continuation of the notice dated 28.3.2005. Thus assessment order passed by the Assessing Officer under Sections 147 and 148 of the Act are quashed. - Decided in favour of the assessee.
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