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TMI Blog2015 (1) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. iii. The appellant craves leave to add, amend or delete the said ground of appeal. The assessee has also raised legal ground/additional ground as follows. on the facts and circumstances of the case as well as in law, the ld. Assessing Officer as well as ld. Commissioner of Income tax (Appeals) has erred in not appreciating the fact that there was no effective notice u/s 143(2) of the Income Tax Act, 1961 and accordingly, assessment order passed u/s 143(3) is bad in law. 2. At the time of hearing, Shri Rakesh Joshi, ld. counsel for the assessee contended that no notice u/s143(2) of the Income Tax Act, 1961 (hereinafter the Act) was issued to the assessee after filing of return of income, therefore, the assessment is void ab- initio. It was pleaded that as per provisions of section 143(2) of the Act, if the Assessing Officer feels that there are some points in the return of income, filed by the assessee, he may issue notice u/s 143(2) of the Act to verify the same. Meaning thereby, notice u/s 143(2) of the Act can be issued only after filing of return by the assessee. It was pointed out that in the present appeal notice u/s 143(2) of the Act was issued prior to filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-05 to 2009-10. In Assessment Year 2010-11, the assessee filed return of income u/s 139(1) of the Act on 26/09/2010 disclosing additional income of Rs. 39,29,046/- on account of unaccounted diamond stock and Rs. 10 lakh on account of profit earned on sales which were not declared in books of accounts. The Assessing Officer issued notice u/s 143(2) of the Act on 17/09/2010 i.e. before the filing of return of income. Later on, notice u/s 143(1) was issued on 20/06/2011. The assessee has challenged the validity of notice on the ground that no notice u/s 143(2) of the Act was issued for the impugned assessment year after filing of return by the assessee by pleading that the assessment so framed, without issuance of notice u/s 143(2) of the Act is void ab-intio. 2.4. Without going into merits of the case, we prefer to dispose of the legal ground, raised by the assessee, first. So far as, raising the additional ground, for the first time before this Tribunal, is concerned, in view of the decision from Hon'ble Apex Court in 229 ITR 383 in the case of NTPC, wherein it was held that the Tribunal has jurisdiction to examine the question of law, raised before it, for the first time, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no notice under this clause shall be served on or after the 1st day of June, 2003. Thus the Assessing Officer should issue notice u/s143(2) only after filing the return of income by the assessee. In the present appeal, no notice u/s 143(2) of the Act was issued/served upon the assessee after filing of return u/s 139 of the Act. The ld. CIT-DR specifically asked, to prove from the assessment record, whether any such notice was issued/served upon the assessee after filing of return of income. The ld. CIT-DR contended that from the record, no such notice was issued/served upon the assessee. In view of this factual matrix and in the light of the decision from Hon'ble Apex Court in ACIT vs Hotel Blue Moon (2010) 188 Taxman 113/321 ITR 362, the Assessing Officer necessarily has to follow the provision of section 142(2) of the Act. In Krishanchand vs IAC (1999) 103 Taxman 88 (J & K), It was held that in issuing notice u/s 143(2), for a particular assessment year, the Assessing Officer should be specific vis-à-vis an amount which was suppressed in that particular year and the assessee could not be ask to explain on amount of thirteen years by clubbed together by creating a liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on the person who is found to have undisclosed income. Section 158BC provides for enquiry and assessment. After the return is filed, clause (b) of section 158BC provides that the Assessing Officer shall to determine the undisclosed income of the block period in the manner laid down in Section 158 BB and the provisions of Section 142, sub-section (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be, apply." This indicates that this clause enables the Assessing Officer, after the return is filed, to complete the assessment under section 143(2) by followng the procedure like issue of notice under section 143(2)/142. This does not provide accepting the return as provide dunder section 143(1)(a) : the officer 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 the same is not curable. Therefore, the requirement of notice under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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