Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2018 (6) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (6) TMI 1472 - HC - Income TaxReopening of assessment - no notice under Section 143(2) was issued - curable defect u/s 292BB - Held that:- This is not a case where the assessing officer says that a notice had been issued and there is a contradiction thereof by the assessee. It is evident that the assessee carried the objection before the Commissioner (Appeals) and the Commissioner brushed aside the objection on the ground that it was a technicality without addressing the issue or applying his mind to such aspect of the matter. As evident from the order impugned passed by the Appellate Tribunal that no notice under Section 143(2) had, in fact, been issued in this case. In such a situation, where a notice that is mandatorily required to be issued is found not to have been issued, Section 292BB of the Act has no manner of operation. Substantial questions of law are answered accordingly as follows: (1) If the time for issuance of the notice under Section 143(2) of the Act has expired or the time for completing the reassessment proceedings under Section 153(2) of the Act has run out, the failure to issue such notice under Section 143(2) of the Act would result in the entire proceedings, including any order of assessment, to be quashed. (2) Section 292BB of the Act does not dispense with the issuance of any notice that is mandated to be issued under the Act, but merely cures the defect of service of such notice if an objection in such regard is not taken before the completion of the assessment or reassessment. In addition, it is held that in the light of the Supreme Court dictum in Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA], the view expressed in Humboldt Wedag India Pvt. Ltd [2014 (5) TMI 279 - CALCUTTA HIGH COURT] is per incuriam and, as such, not good law.
|