TMI Blog2013 (10) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer is required to issue notice under section 143(2) of the Act for completing the assessment. If the Assessing Officer is failed to issue notice under section 143(2) of the Act, it would vitiate the reassessment proceedings. It makes no difference whether the assessee files a separate return in response to notice under section 148 or 142(1) of the Act or the assessee files a letter stating therein that the return filed earlier may be treated as return filed in response to the notice. Undeniably after filing of the letter by the assessee with a request to treat the return filed under section 139(1) of the Act as the return in response to notice under section 148 of the Act or section 142(1) of the Act, no notice under section 143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated February 28, 2013 needs to be quashed and the order passed by the Assessing Officer dated December 28, 2007 to be restored. 4. That the appellant craves leave to modify any of the ground of appeal mentioned above and/or to add any fresh grounds as and when it is required to do so. 2. Though the Revenue has challenged the order of the learned Commissioner of Income-tax (Appeals) for deleting the addition of ₹ 12,93,729, but the main issue challenging the order of the learned Commissioner of Income-tax (Appeals) is with regard to the annulling of the assessment by the learned Commissioner of Income-tax (Appeals). 3. On perusal of record, we also find that the learned Commissioner of Income-tax (Appeals) has given his fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and notice under section 148 of the Income-tax Act, 1961 filed by the assessee vide letter dated August 20, 2007. 6. 26.11.2007 The Assessing Officer vide letter F. No. ITO/2(1)/KNP/DD Ahuja/ SCr/2004-05/430 dated November 26, 2007 disposed of the objection of the assessee and give the option to file a letter stating that the return already filed under section 139(1) may be treated as return filed in compliance with notice under section 148 of the Income-tax Act, 1961. 7. 29.11.2007 The appellant filed a letter dated November 29, 2007 stating therein that return filed under section 139(1) of the Income-tax Act, for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the assessee further contended that in the case of CIT v. Rajeev Sharma [2011] 336 ITR 678 (All), the facts are almost similar in which case after filing the return of income in response to notice under section 148 of the Act no notice under section 143(2) of the Act was issued and assessment was completed under section 143(3) read with section 147 of the Act. Having fully relied upon the judgment of the jurisdictional High Court in the case of CIT v. Rajeev Sharma [2011] 336 ITR 678 (All), the learned Commissioner of Income-tax (Appeals) has correctly held that the assessment was not valid and accordingly annulled the same. Our attention was also invited to the judgment of the hon'ble apex court in the case of Asst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, he must necessarily issue notice under section 143(2) of the Act within the time prescribed in the proviso to section 143(2) of the Act. Omission on the part of the assessing authority to issue notice under section 143(2) of the Act cannot be a procedural irregularity and the same is not curable. 9. In the case of CIT v. Rajeev Sharma [2011] 336 ITR 678 (All), the jurisdictional High Court have categorically held that the provisions contained in section 143(2) of the Act is mandatory in nature and it is obligatory for the Assessing Officer to apply his mind to the contents of the return filed in response to notice under section 148 of the Act and thereafter issued notice under section 143(2) of the Act before proceeding to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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