TMI Blog2016 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... income on 30.04.2004. Notice u/s 148 of the Act was issued on 28.03.2011 and thereafter, the income was assessed at ₹ 11,34,435/-. It is the assessee s contention that no notice u/s 143(2) of the Act was issued to the assessee subsequent to the issue of notice u/s 148. It has been the assessee s stand that non-issuance of notice to an assessee, as prescribed in the Act, is not only a procedural irregularity and that in absence of the issuance of statutory notice u/s 143(2) of the Act, the assessment order passed by the Assessing Officer is bad in law and void ab initio. The assessee raised this issue before the Ld. CIT (A) also. However, the Ld. CIT (A), while adjudicating the issue, relying upon the judgement of the Hon'ble Delhi High Court in the case of Madhya Bharat Corporation Ltd. 337 ITR 389 (Del), held that the non-issuance of notice u/s 143(2) of the Act did not make the assessment invalid. On merits also, the Ld. CIT (A) dismissed the grounds of appeal of the assessee. Now, the assessee is in appeal before us and has raised as many as 12 grounds of appeal but ground no. 5 being germane to the entire issue at hand is being taken up first. The ground reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax-II vs Madhya Bharat Energy Corpn. Ltd. passed on 11 July, 2011 in Income Tax Act, 1961 No.950/2008. 6. Thus, it is undisputed that the Department accepts the contention of the assessee that the notice u/s 143(2) was not issued at all. In the present appeal before us also, the Department did not controvert this claim of the assessee. The Hon'ble Delhi High Court in the case of Pr. CIT-08 vs Shri Jai Shiv Shankar Traders (In I.T.A. No. 519/ 2015 in order dated 14.10.2015) has dealt with the issue at length. The relevant paragraphs are reproduced as under:- 6. The AO then proceeded to pass an assessment order on 31st December, 2010 whereby, inter alia, an addition of ₹ 1 crore was made to the income of the Assessee under Section 68 of the Act as unexplained credits. In the appeal before the Commissioner of Income Tax (Appeals), the Assessee, inter alia, raised the issue that in the absence of a notice under Section 143(2) of the Act the order of re-assessment was invalid. The CIT (A) negatived the above contention holding that no specific notice was required to be issued under Section 143(2) of the Act and that questionnaires dated 11th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue in the present case is concerned. xxxxxxxxxxxx 12. The narration of facts as noted above by the Court makes it clear that no notice under Section 143(2) of the Act was issued to the Assessee after 16th December 2010, the date on which the Assessee informed the AO that the return originally filed should be treated as the return filed pursuant to the notice under Section 148 of the Act. 13. In DIT v. Society for Worldwide Interbank Financial Telecommunications (2010) (Del), this Court invalidated a reassessment proceeding after noting that the notice under Section 143(2) of the Act was not issued to the Assessee pursuant to the filing of the return. In other words, it was held mandatory to serve the notice under Section 143(2) of the Act only after the return filed by the Assessee is actually scrutinised by the AO. 14. The interplay of Sections 143 (2) and 148 of the Act formed the subject matter of at least two decisions of the Allahabad High Court. In CIT v. Rajeev Sharma (2011) 336 ITR 678 (All.) it was held that a plain reading of Section 148 of the Act reveals that within the statutory period specified therein, it shall be incumbent to send a notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of a notice under Section 143 (2) of the Act, the assumption of jurisdiction itself would be invalid. 16. In the same decision in v. Salarpur Cold Storage (P.) Ltd. (supra), the Allahabad High Court noticed that the decision of the Supreme Court in ACIT v. Hotel Blue Moon (supra) where in relation to block assessment, the Supreme Court held that the requirement to issue notice under Section 143(2) was mandatory. It was not a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. 17. The Madras High Court held likewise in Sapthagiri Finance Investments v. ITO (2013) 90 DTR 289 (Mad). The facts of that case were that a notice under Section 148 of the Act was issued to the Assessee seeking to reopen the assessment for AY 2000-01. However, the Assessee did not file a return and therefore a notice was issued to it under Section 142 (1) of the Act. Pursuant thereto, the Assessee appeared before the AO and stated that the original return filed should be treated as a return filed in response to the notice under Section 148 of the Act. The High Court observed that if thereafter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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