TMI Blog2015 (12) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... posing of these appeals by passing a common order for the sake of brevity, we first deal with ITA No. 4171/Del/2015 (AY 2003-04). 2. Ld. CIT(A) has discussed the issue in dispute at para no. 6, at page no. 29 in his order. In this paragraph the Ld. CIT(A) held that the Service of Notice u/s. 143(2) is only an administrative requirement and not a legal requirement. He concluded as follows:- Thus, it is held that the AO has not erred in not issuing the notice u/s. 143(2) without having the ROI on the record after the assessee's letter dated 26.11.2010 requesting the AO to treat the original ROI as ROI filed in response to the notice u/s. 148. 3. The assesee filed a copy of the order sheet entries from the assessment records, duly certified by the AO. A perusal of the same demonstrates that no Notice u/s. 143(2) of the Act was issued, after the assessee filed a letter dated 26.11.2010, requesting the AO to treat the return of income originally filed as a ROI filed in response to the Notice u/s. 148 dated 30.3.2010. 4. On this factual matrix, I find that the issue is squarely covered in favour of the Assessee and against the Revenue. The ITAT, 'C' Bench, Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treated as revenue receipt and taxed accordingly. The case is posted for final hearing on 20-10-2010 at 3.30 pm. No further adjournment will be granted. If no compliance is forthcoming on that day, assessment will be completed bringing to tax ₹ 1.00 (Rs. One Crore) as revenue receipt as per the provisions of sec.28(va) of the Act. 8. A look at Section 143(2) is called for at this juncture. It is reproduced hereunder; 143(2) Where a return has been furnished under section 139, or in response to a notice under sub-section(1) of section 142, the AO shall i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim; (Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003) ii) notwithstanding anything contained in clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee to treat his earlier return as filed in pursuance to notices u/s 148 of the IT Act was received. This request, in the given case, has been made only on 05-10-2010. Any issue of notice prior to that date cannot be treated as a notice on a return filed by the assessee pursuant to a notice u/s 148 of the Act. Or in other words, there was no valid issue of notice u/s 143(2) of the IT Act, and the assessments were done without following the mandatory requirement u/s 143(2) of the IT Act. This in our opinion, render the subsequent proceedings all invalid. Learned CIT(A) had only adjudicated on a position where there was no service of notices u/s 143(2) of the IT Act. He had not dealt with the scenario, where notice was issued prior to the filing of return by the assessee. We therefore, quash the assessment done for the impugned assessment years. Since the appeals of the assessee are allowed on its ground 3, other grounds are not adjudicated. - ITAT, 'E' Delhi Bench decision dated 08.4.2015 passed in the case of ITO vs. Naseman Farms Pvt. Ltd. Ors. In ITA No. 1175/Del/2011 (AY 2002- 03) wherein the Tribunal has followed the decision of the Apex Court in the case of ACI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee's premises - is not a valid service of notice - Assessment framed in pursuance of such notice is not valid - It is immaterial that the assessee appeared in the proceedings. CIT Vs. Cebon India Ltd. (2012) 347 ITR 583 (P H) 5. We find that concurrent finding has been recorded by the CIT(A) as well the tribunal on the question of date of service of notice. Notice was not served within the stipulated time. Mere giving of dispatch number will not render the said finding to be perverse. In absence of notice being served, the AO had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under s 292BB of the Act. CIT Vs. Mr. Salman Khan, ITA No.508 of 2010 1. In the present case, reassessment order passed under section 143(3) r/w 147 of the Income Tax Act, 1961 is held to be bad in law in view of the fact that the assessing officer has not issued notice under section 143(2) after issuing notice under section 148 of the Income Tax Act, 1961. This Court in the case of The Commissioner of Income Tax Vis. Mr. Salman Khan [Income Tax Appeal No.2362 of 2009)decided on 1st December, 2009 has considered similar question and has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he IT Act would not apply in the case of the assessee. Further, no notice u/s. 143(2) has been issued or served upon the assessee. Therefore, the decision of Hon'ble Punjab Haryana High Court in the case of Cebon India Ltd. (supra) squarely applies against the revenue. It was held in this case that absence of notice is not curable defect u/s. 292BB of the IT Act. Considering the above discussion and the case laws cited above, the sole objection of the Revenue is not maintainable. Therefore, the Id. CIT (A) was justified in setting aside the entire assessment order. We, therefore, do not find any infirmity in the order of the Id. CIT (A) for interference. (v) The Hon'ble Mumbai Bench of the ITAT has, in the case of Sanjeev R Arora v. ACIT [IT (SS)A No.103/Muml2004 dated 25.7.2012], recorded its findings as under. Even, the irregularity in proper service of notice which can be treated as curable under section 292B of the Income-tax Act is only in the cases where the notice under section 143(2) was issued properly and within the period of limitation and the assessee did not raise any objection regarding the service of the notice during the assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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