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2022 (9) TMI 415 - HC - Income TaxValid notice u/s 143(2) - assessment on fringe benefits - whether notice issued for the purpose of assessment on fringe benefits? - whether the notice on which much reliance has been placed by the learned Standing Counsel for the Income Tax Department can be construed to be a notice under Section 143(2) of the Act? - HELD THAT:- Section 115WE of the Act deals with assessment. As per sub- section (1) thereof, where a return has been made under Section 115WD of the Act, such return shall be processed in the manner provided thereunder. Sub- section (2) of Section 115WE of the Act provides that where a return has been furnished under Section 115WD, the assessing officer shall, if he considers it necessary or expedient to ensure that the assessee has not understated the value of fringe benefits or has not underpaid the tax in any manner, serve on the assessee a notice requiring him to attend his office or to produce any evidence relied upon by the assessee on specified date. As per the proviso, no notice under sub-section (2) 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. From a reading of the above notice in conjunction with Section 143(2) and Section 115WE(2) of the Act, there can be no manner of doubt that the above notice was issued in the context of the return filed for fringe benefits by the respondent. In Hotel Blue Moon's case [2010 (2) TMI 1 - SUPREME COURT] the question before the Supreme Court was whether issuance of notice under Section 143(2) of the Act within the prescribed time limit is mandatory or not. On due consideration, Supreme Court took the view that such a notice is not a mere procedural requirement, but a mandatory provision. Though the above question was examined in the light of Section 158BC dealing with block assessment following search and seizure, nonetheless Supreme Court upheld the views expressed that Section 143(2) of the Act is mandatory and violation thereof cannot be construed to be a procedural irregularity. Tribunal as followed the aforesaid decision which decision may not be strictly applicable to the facts of the case, nonetheless, we are of the view that the notice dated 17.09.2009 cannot be construed to be a notice under Section 143(2) of the Act for the purpose of assessment under Section 143 - It was a notice issued for the purpose of assessment on fringe benefits. Insofar this issue is concerned, we are of the view that it goes to the root of the matter and therefore, Tribunal was justified in entertaining the petition filed by the respondent raising the additional ground, which is nothing but a pure question of law going to the root of jurisdiction. WA dismissed.
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