TMI Blog2013 (4) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... w and has contended that the assessment order passed by the Assessing Officer under Section 143(3) of the Act is bad in law for the reason that there has been an omission to issue the notice under Section 143(2) of the Act, before finalization of assessment. Since the aforesaid Ground goes to the root of the matter, hence the same is being adjudicated at the outset. 2 3. In the assessment order, the Assessing Officer has noted in para-1 that on the basis of Annual Information Return (AIR) data, a notice under Section 142(1) of the Act was issued to the assessee as it was found that there were deposits of ₹ 82,30,000/- in assessee s bank account with Cosmos Co-operative Bank Ltd., and that the assessee filed return of income on 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee on 31.12.2007 and in view of limitations involved in the case as opted to waive the right to notice under Section 143(2). 6. According to the CIT(A) the authorized Representative of the assessee waived the right to notice under Section 143(2) of the Act, and such a waiver can be understood as deemed service of notice under Section 143(2) of the Act on the assessee on 31.12.2007. 7. Before us, the learned counsel for the assessee vehemently pointed out that non-issuance of notice under Section 143(2) of the Act is a non-curable defect and that such a requirement is a jurisdictional requirement to make an assessment and that there can be no waiver of such requirement even by the consent of the assessee. Apart from relyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoon (supra) has opined that an omission on the part of the assessing authority to issue notice under Section 143(2) of the Act cannot be construed as a procedural irregularity and the same is not curable and therefore the requirement of issuing notice under Section 143(2) of the Act cannot be dispensed with. In other words, in terms of the judgement of the Hon ble Supreme Court in the case of Hotel Bluemoon (supra), it has to be understood that omission to issue notice under Section 143(2) of the Act is a non-curable defect and that the requirement of issuance of notice under Section 143(2) of the Act in order to make an assessment under Section 143(3) of the Act is not a mere procedural requirement but is a mandatory requirement. Factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to comply with the requirements within a period of not less than 30 days. In the case before the Hon ble High Court the notice gave only six days to the assessee to make a return under Section 34 of the erstwhile Act. The assessee, however, made a return and he was assessed. The assessee challenged the validity of the notice and in response it was contended by the Revenue that even if the notice issued was bad in law, it was waived by the assessee, firstly, by his action of making a return pursuant to such a notice and secondly, by appearing before the Assessing Officer and allowing the assessment order to be made and not objecting to the assessment till he went in an appeal. The aforesaid argument of the Revenue has been negated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer. As per the ratio of the judgement of the Hon ble Gujarat High Court, a jurisdictional requisite cannot be waived by the assessee and even though in the first round of appeal against the re-assessment the assessee had given up this point and the Tribunal had remanded the case to the Assessing Officer for a limited purpose of ascertaining the validity of addition, the Appellate Assistant Commissioner of Appeals was justified in annulling the re-assessment in appeal arising from the remand order on the ground that no reasons were recorded by the Income Tax Officer before reopening the assessment under Section 148 of the Act. 13. In view of the aforesaid legal position, the plea of the Revenue that assessee waived the right to not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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