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SMT SUMANLATA BANSAL Versus ASSTT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-8, MUMBAI

2015 (5) TMI 1031 - ITAT MUMBAI

Assessment framed under section 153A - Whether the issue of notice under section 143(2) of the income-tax Act is mandatory for finalization of assessment under section 153A? - Held that:- Non-issuance of notice under sub-section (2) of section of the Act is not mandatory. As a consequence, the second question is also answered against the assessee, Assessment proceedings u/s 153A cannot be held as null and void, for non-issuance of notice u/s 143(2) of the Act, as this provision is not attracted .....

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tion (2) to Section 143 of he I.T. Act in the case of assessment framed under section 153A, in consequence of search under section 132, is merely an irregularity and the same is curable? (b) Whether on the facts of the case, failure on the part of the Assessing Officer to issue notice to the assessee as per provisions of sub-section (2) to section 143 shall have the effect of rendering the entire assessment framed under section 153A of the Act as null and void?" 2. Subsequently, the Princip .....

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ompetent to reframe the points of difference to bring to focus the issues that emerge out of the orders passed by the respective Members of the Division Bench? and (b) Whether the learned CiT-DR is authorized to request the Hon'ble President for reframing of question to bring into focus the points of difference emerging out of the orders passed by the respective Members of the Division Bench?" 4. I have carefully considered the submissions made by the learned Counsels appearing for the .....

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after referred to as "the Act") mandates issuance of notice u/s 143(2) of the Act. Learned Counsel for the assessee submits that on a plain reading of this provision, the requirement of issuance of notice u/s 143(2) of the Act is a condition precedent to proceed further. Learned Counsel has relied on a number of decisions including that of the Hon'ble Supreme Court as also the jurisdictional High Court, to urge that on an interpretation of the provisions therein, which are in pari .....

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ted before me by Learned Counsel for the assessee. In ACIT & Anr. v. Hotel Blue Moon {(2010) 321 ITR 362 (SC)], the Hon'ble Supreme Court, while dealing with the question of issuance of notice u/s 143(2) in search and seizure cases, after noting the contentions of Counsel holds .....the only question that arises for our consideration in this batch of appeals is, whether service of notice on the assessee under section 143(2) within the prescribed period of time is a pre-requisite for fram .....

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not see any reason to .restrict the scope and meaning of the expression "so far as may be apply". In our view, where the Assessing Officer in repudiation of the return filed under section 15BBC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, subsections (2) and (3) of section 143." (page 370) (emphasis supplied). Learned Counsel for the assessee also contended that the jurisdictional High Court in ACIT v. Geno Pharmaceuticals Ltd. in Tax .....

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s No.77/2012 and 78/2012 are concerned, in both these appeals, the ITAT has held that the issuance of notice after reopening of the case was mandatory and this order is under challenge. It is contended that the said order is contrary to the provisions of Sections 292BB which was introduced by the Finance Act 2008 w.e.f 01.04.2008, in which it is stated that in a case where an assessee has appeared in any proceedings or co-operated in any inquiry relating to an assessment or reassessment, it shal .....

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Power Co. Ltd. vs. Commissioner of Income-Tax, report in 229 ITR 383 has held that the Tribunal has discretion to allow or not to allow a new ground to be raised. But in a case where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. .....

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inquiry on the return filed in compliance with the notice issued under Section 148." Learned Counsel also relies upon the decision of the Hon'ble High Court of Delhi in Alpine Electronics Asia Pie. Ltd. Director General of Income-tax & Ors. [(2012) 341 ITR 247 (Del)} to urge that the requirement of issuance of notice u/s 143(2) is mandatory and on similar facts he also relies upon the decision of the Allahabad High Court in CIT v. Rajeev Sharma [(2011) 336 ITR 678 (Allahabad)]. Lea .....

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d or not. In this case, two issues were raised for the consideration of the High Court, viz,, "(a) Whether the issue of notice under section 143(2) of the income-tax Act is mandatory for finalization of assessment under section 153A?, (b) Whether the findings of the authorities below upholding the addition of ₹ 10 lakhs of cash seized from Mr. D. S. Rawat in the hands of the assessee was perverse and required to be set aside?". The issue was answered by the High Court against the .....

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sment in case of search or requisition.-(1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the r .....

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sue of notice under section 143(2) of the Act. Learned counsel for the assessee places heavy reliance on the judgment of the Hon'ble Supreme Court in Hotel Blue Moon [2010] (321 ITR 362) wherein it was held that where an assessment has to be completed under section 143(3) read with section 158BC, notice under section 143(2) must be issued and omission to do so cannot be a procedural irregularity and the same is not curable. It is to be noted that the above said judgment was in the context of .....

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case. 10. The decision of Lunar Diamond Ltd.[2006] 281 ITR 1 (Delhi); Vardhman Estates [2006] 287 ITR 368 (Delhi) and Bhan Textiles [2006] 287 ITR 370 (Delhi) relied upon by learned counsel for the assessee related to the requirement of service of notice upon the assessee within a prescribed time and thus not applicable to the present case. The case of Pawan Gupta [2009] 318 ITR 322 (Delhi) related to mandatory issue of notice under section 143(2) of the Act in the case of regular assessment as .....

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f requirement of notice under section 143(2) for an assessment under section 147 came up for consideration before this Court recently in CIT vs. Madhya Bharat Energy Corporation Ltd. (I.T.A No, 950 of 2008, decided on July 11, 2011) 337 ITR 389 (Delhi) . In that case also, this Court has held that in the absence of any specific provision under section 147 of the Act, the issuance of notice under section 143(2) cannot be held to be a mandatory requirement. 11. It is also to be noted that section .....

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arned counsel for the assessee/appellant sought to contend that the words, "so far as may be applicable" made it mandatory for issuance of notice under section 143(2) since the return filed in response to notice under section 153A was to be treated as one under section 139. Learned counsel relies upon R. Dalmia vs. CIT (supra) wherein the question of issue of notice under section 143(2) was examined with reference to section 148 by the Supreme Court in the context of section 147. The A .....

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icability of section 144B and section 153 (since omitted with effect from April 1, 1989) to the assessment made under sections 147 and 148 and thus cannot be said to be the decision laying down the law regarding mandatory issue of notice under section 143(2). 13. The words 'so far as may be' in clause (a) of sub-section (1) of section 153A could not be interpreted that the issue of notice under section 143(2) was mandatory in case of assessment under section 153A, The use of the words &q .....

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