9911796707
TMI Blog2014 (1) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... 21,95,000/-. Thus, the income on account of short term capital gain has escaped assessment. The assessee filed return in response to notice u/s.148 declaring net loss of Rs. 53.400/- from the said transaction. Since the Assessing Officer felt that notice issued u/s.148 is premature he dropped the proceedings u/s.148 vide order dated 03-11-2009 and initiated fresh proceedings by issue of notice u/s.148 dated 06-11-2009. 2.1 In response to notice u/s.142(1), it was submitted that the assessee has purchased one commercial plot for his own printing press. Since the aforesaid plot transaction is purely commercial transaction and it is effected only for business purposes, the question of application of provisions of section 50C to the above transaction does not arise at all. However, the AO did not accept the submissions made by the assessee and held that it is a capital asset within the meaning of section 2(42A) of the I.T. Act. Since the value assessed by stamp duty valuation authority for the purpose of payment of stamp duty in respect of the said plot sold is Rs. 21,95,000/-, the Assessing Officer, after deducting the cost of acquisition including expenses incurred on purchase of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before us with the following grounds : "1. On the facts and in the prevailing circumstances of the case and as per the provision of law, it may please be held that the learned CIT(A) has grossly erred in holding that proceeding initiated vide notice u/s.148 dt.06-11-2009 are valid, though it was initiated for the same reasons recorded at the time of initiation of first proceedings vide notice u/s.148 dt.12-03-2009, which were dropped. There is no any additional new information in the hands of A.O for such initiation of new proceedings. Therefore, proceedings initiated u/s.148 dt.06-11-2009 may please be held as illegal and bad in law. 2. On the facts and in the prevailing circumstances of the case and as per the provision of law, it may please be held that the learned CIT(A) has grossly erred in confirming the validity of assessment order passed u/s.143(3) rws 147 dt.18-10-2010, though categorically admitted in the appellate order that no notice u/s.143(2) was issued to the appellant. In absence of any compliance to the notice u/s.148 dt.06-11-2009 and as the notice u/s.143(2) was not issued, the order passed u/s.143(3) rws 147 is without having jurisdiction and hence, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicability of provision of section 50C of the I. T Act, the A.O should have referred the matter to the DVO in view of the provision of section,50(2) of the I T Act, to justify his action. A.O failed to do so. Therefore appellant sincerely request to the Hon members, if the contention of the appellant is not acceptable, a further opportunity may please be granted to the appellant and A.O may please be directed to refer the matter to the DVO for ascertaining the correct fair market value of the impugned property. 7. On the facts and in the prevailing circumstances of the case and as per the provision of law, the learned C1T(A) has grossly erred in holding that the provision of section 234 B is mandatory, even though the income of the appellant is below the limit liable to Advance-tax and hence there is no liability to make any payment of Advance tax in view of the provision of section 208, 209 & 210 of the I.T Act and hence appellant denies his liability to pay Advance tax and consequently the provision of section u/s.234B of the I.T Act is not attracted. Therefore, finding of the CIT(A) may please be vacated and delete the interest charged u/s.234 B of the I T Act. 8. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en held that absence of notice cannot be held to be curable u/s.292BB of the Act. He accordingly submitted that in view of the above 2 High Court decisions the assessment order passed by the Assessing Officer is void ab-initio since no notice u/s.143(2) has been issued and served on the assessee. 6. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A). He submitted that the assessee has never raised this issue before the Assessing Officer and has participated in the assessment proceedings. Therefore, provisions of section 292BB will take care of any lacuna in the service of the notice u/s.143(2) or non-service of the same. He accordingly submitted that the order of the CIT(A) on this issue be upheld. 7. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited by the Ld. Counsel for the assessee. There is no dispute to the fact that in the instant case no notice u/s.143(2) has been issued and served on the assessee, a fact brought on record by the CIT(A). While adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention with respect to defective service of the notice. 5. It is the case of the Revenue that the assessee, having participated in the assessment proceedings without raising any contention regarding belated service of the notice, by virtue of the provisions of Section 292BB of the Act, was precluded from so doing at an appellate stage. 6. It is also the case of the Revenue that the provisions of Section 292BB of the Act are procedural in nature and, therefore, would apply to all pending proceedings. Counsel for the Revenue, therefore, vehemently contended that the Tribunal's order requires interference. 7. We may, however, recall that the defect pointed out by the assessee was not with respect to service of the notice or its service beyond time permitted but on the very issuance of the notice after the last date envisaged in Section 143(2) of the Act had passed. In case of Assistant Commissioner of Income-Tax vs. Hotel Blue Moon reported in [2010] 321 ITR 362(SC), the Apex Court, while examining the question of requirement of issuance of notice under Section 143(2) of the Act in the context of the block assessment under Section 158BC of the Act, held that even in block as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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