TMI Blog2014 (1) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... and agricultural income of ₹ 40,000/-. The reason for issue of notice is that the assessee has purchased a plot of land for ₹ 8 lakhs on 27-08-2007 and sold the said plot of land on 17-01-2008 for a consideration of ₹ 9 lakhs The value of the said property as per provisions of section 50C was ₹ 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 ₹ 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 cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to DVO, he held that the assessee has never raised such contention before the Assessing Officer during assessment proceedings. Further, no ground has been taken before him on this issue. He accordingly decided the issue of referring the valuation to DVO against the assessee. 4. Aggrieved with such order of the CIT(A) the assessee is in appeal 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 asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the business of appellant. To decide the nature of capital gain, the intention of the appellant is important factor. Thus, aforesaid finding and conclusion of lower authorities may please be vacated. 6. Without prejudice to the ground no. 5, Once, appellant says that the provision of section 50C is not applicable to the transaction of the appellant and disputed the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice within the statutory period. 5.1 Referring to the decision of the Hon ble Punjab Haryana High Court in the case of CIT Vs. Cebon India Ltd. reported in 347 ITR 583 he submitted that the Hon ble High Court in the said decision has held that in absence of service of notice u/s.143(2) within the stipulated time, the Assessing Officer has no jurisdiction to make assessment. It has been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the completion of such assessment or reassessment. 4. It is the case of the Revenue that by virtue of the provisions of contained in Section 292BB of the Act, the assessee was precluded from raising any contention regarding either non-service of the notice within time or improper service of the notice under the Act in view of the assessee appearing before the Assessing Officer and not having raised any contention 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 perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs ? 2. Without prejudice to above, whether the Tribunal is right in not treating the defect if any in service of notice under s. 143(2) as an irregularity curable under s. 292BB of the IT Act, 1961 ? 7.3 We find the Hon ble High Court while deciding the issue has held as under: 5. We find that concurrent finding has been recorded by the CIT(A) as well as 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. 7.5 The facts in the instant case are still worse. Admittedly no notice u/s.143(2) has been issued to the assessee in the instant case. Therefore, in view of the above 2 decisions cited (Supra) we hold that the assessment order passed by the Assessing Officer is void ab-initio due to non-issue of notice u/s.143(2). 8. Since the assessee succeeds on this preliminary issue the various other grounds raised by the assessee become academic in nature and therefore are not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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