TMI Blog2011 (5) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... har PER BENCH : ORDER These are the appeals filed by the department for assessment years 2000-01, 2001-02 and 2003-04 against the orders of Ld. C.I.T.(A)-VI, Kolkata, dated 07/7/2009, 06/8/2009 and 10/8/2009 respectively. 2. The appeal filed for assessment year 2000-01 is time barred by two days and the department has filed the application for condonation of delay. At the time of hearing, the ld. A/R has not disputed the reasons given by the department in the application for condonation of delay and the Ld. Departmental Representative submitted that the delay was due to a reasonable cause. After considering the submissions of the learned representative of the parties and the application for condonation of delay dated 07/10/2009, we decided to condone the delay and to entertain the appeal on merit. 3. All these appeals are arising out of the reassessment orders passed by the A.O. u/s. 147/143(3) of the I.T. Act, 1961. There is no dispute to the fact that the A.O. recorded reasons before initiating reassessment proceedings and the said issue of initiation of reassessment proceedings is not before us. It is also not in dispute that the assessee filed the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, without issue of notice u/s. 143(2) within 12 months is not valid. The ld. A/R submitted that I.T.A.T., Lucknow Bench has recently considered the same issue vide its order dated 17/1/2011 in ITA No. 699 (Lkw)/2010 in the case of DCIT vs. K.M. Sugar Mills Ltd., a copy of which has been filed by the assessee before us, and the Tribunal after considering the decision of Hon ble Apex Court in the case of ACIT vs. Hotal Blue Moon [321 ITR 362 (SC)] and the decision of Hon ble Allahabad High Court (Lucknow Bench) in the case of CIT vs. Rajeev Sharma [(2010) 232 CTR 303 (All)/192 Taxman 197] have held that provision contained in sec. 143(2) of the Act is mandatory in nature and it is obligatory for the A.O. to issue notice u/s. 143(2) of the Act before proceeding to decide the controversy regarding escaped assessment and non-issuance of notice u/s. 143(2) of the Act after filing of return by the assessee in response to notice u/s. 148 of the Act vitiates the reassessment proceedings. The ld. A/R further submitted that similar issue had also been considered by Special Bench of I.T.A.T., Delhi in the case of Raj Kumar Chawla vs. ITO [94 ITD 1 (SB-Del)], wherein it was held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the cases cited by the learned representatives of the parties and the relevant provisions of the Act. At the outset we agree with the ld. A/R that the provisions of sec. 292BB of the Act do not apply to the facts of the cases before us as in the cases before us there is no dispute that the A.O. did not issue notice at all u/s. 143(2) of the Act and whereas provisions of sec. 292BB of the Act deal only in respect of the irregularities in serving of notice on the assessee. Hence the contention of the ld. Departmental Representative has no merit that the assessee cannot question the validity of notice in the appellate proceedings as the assessee failed to take any objection before the A.O. that the notice was not served upon it properly or in time or served in an improper manner. Moreover, the said provision has been inserted by the Finance Act, 2008 w.e.f. 1st April, 2008, i.e.applicable for assessment year 2008-09 and whereas the assessment years under consideration are 2000-01, 2001-02 and 2003-04. 8. Now coming to the issue as to whether non-issuance of notice u/s. 143(2) of the Act goes to the very root of the validity of the reassessment order or not, we find that by virt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of ACIT vs. Hotal Blue Moon (supar) and Hon ble Allahabad High Court (Lucknow Bench) in the case of CIT vs. Rajeev Sharma (supra) has held that non-issuance of notice u/s. 143(2) of the Act after filing of return by the assessee in response to notice u/s. 148 vitiates the reassessment proceedings. We consider it prudent to reproduce para-6 of the said order, which reads as under :- 6. We have heard the rival submissions. Shri Vivek Mishra, ld.CIT(DR) submitted that the ld.CIT(A) failed to appreciate that the Hon ble Allahabad High CourtLucknow Bench in the case of CIT vs. Rajeev Sharma (2010) 232 CTR (All.) 303 never intended that the notice under Section 143(2) should be issued in all the cases where action under Section 148 is contemplated. But what the Hon ble High Court intended was that the notice u/s 143(2) should be issued in those cases only where the assessee has filed a fresh return in response to notice u/s 148 of the Act and not in those cases where the return already filed is deemed to have been filed in response to notice u/s 148 of the Act. On the other hand, Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that before making assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee under Section 143(2) within the prescribed period of time is a pre-requisite for framing the block assessment; non-issuance of notice is not a mere procedural irregularity and the same is not curable. In view of the above decisions, we do not find any merit in the submissions of Shri Vivek Mishra, ld. CIT(DR). Keeping in view the judgments of the Hon ble Supreme Court in the case of Hotel Blue Moon (supra) and that of the Honbie jurisdictional HighCourt-Lucknow Bench in the case of Rajeev Sharma (supra), we uphold the order of the id. CIT(A) and dismiss the appeal of the Revenue. 8.1. Further, Hon ble Punjab Haryana High Court in the case of Vipan Khanna vs. C.I.T. [255 I.T.R. 220 (P H)] held as under : (ii) That it was an admitted position that no notice under section 143(2) of the Act had been served on the assessee within the stipulated period and as such his return had become final. In view of the amendment made in section 147 of the Act with effect from April 1, 1989, the Assessing Officer could not only assess or reassess the escaped income in respect of which proceedings under section 147 have been initiated but also any other income chargeable to tax whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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