TMI Blog2016 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... - Sh. N. K. Saini, AM For The Assessee : Sh. Akhilesh Kumar, Adv. For The Revenue : Sh. Bhim Singh, Sr. DR ORDER This is an appeal by the assessee against the order dated 29.10.2013 of ld. CIT(A), Muzaffarnagar. 2. Following grounds have been raised in this appeal: 1. Because, the learned Commissioner of Income Tax (Appeals) grossly erred in dismissing the ground on non-issuance of notice u/s 143(2) of the IT Act, 1961, merely because the same is not issued during the assessment proceedings and such controversy is not permissible to raise at this stage or by general ground, while such legal ground can be taken at any stage. 2. Because, the learned Commissioner of Income Tax (Appeals) grossly erred in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in brief are that the assessee filed the return of income declaring an income of ₹ 1,08,980/- on 31.03.2004. Later on, the AO reopened the case u/s 148 of the Act for the reason that the assessee had received an amount of ₹ 1,00,000/- through cheque no. 449508 on 10.07.2002 which had escaped assessment. The assessee did not file any return of income but relied on return already filed on 31.03.2004. The AO framed the assessment at an income of ₹ 2,08,980/- by making the addition of ₹ 1,00,000/- which was received from M/s Ayush Fincap Pvt. Ltd. 5. Being aggrieved the assessee carried the matter to the ld. CIT(A) and raised the issue relating to the jurisdiction and submitted that no notice u/s 143(2) was issue. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s 148 on 26.03.2010 which was duly served on 27.03.2010. Therefore, the contention of the assessee that he submitted return on 19.11.2010 deserves to be rejected. In fact no return of income was submitted by him in response to the notice u/s 148 dated 26.03.2010. In view of these facts and circumstances of the case the proceedings initiated u/s 147 of the Act vide notice u/s 148 date 26.03.2010 were legally correct and justified. The proceedings concluded after giving opportunity by issue of notices u/s 142(1) on 16.07.2010 and 12.10.2010 and also show cause notice dated 6.12.2010 were also justified. Further since no return was filed, therefore, no notice u/s 143(2) was to be issued in this case in accordance with the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... driveshaft case-259 ITR 19 (SC) and admittedly Ld. AO has supplied reasons which automatically proves that compliance is accepted now the same stand is changed to cover up the non-issuance of notice u/s 143(2) b) Assessee made compliance vide letter dt. 19.11.10 and sought reasons but AO asked to file computation of income before supplying seeking reasons the same are supplied of course after accepting the compliance. As such when during the re-assessment proceedings, compliance is accepted than now it can be said that no compliance is made. In fact in no. of cases, similar plea is taken in appeals but not accepted by the courts/tribunal. For example in the case of Aligarh Auto, which is no reported as (2013) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of notice u/s 143(2) of the Act is mandatory and not even curable u/s 292B of the Act. Therefore, the reassessment framed by the AO without issuing the notice u/s 143(2) was void ab initio . 10. In his rival submission the ld. DR supported the orders of the authorities below. 11. I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the AO did not issue any notice u/s 143(2) of the Act. A similar issue has been decided by the Hon ble Jurisdictional High Court of Allahabad in the case of CIT Vs Rajeev Sharma reported at (2011) 336 ITR 678 wherein by following judgment of the Hon ble Supreme Court in the case of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer has to complete the assessment under section 143(3) only. If an assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and is not curable. Therefore, the requirement of notice under section 143(2) cannot be dispensed with. 12. I, therefore, by keeping in view the ratio laid down by the Hon ble Jurisdictional High Court in the aforesaid referred to case of CIT Vs Rajeev Sharma 336 ITR 678, set aside the impurnged order and the reassessment framed by the AO without serving the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
