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TMI Blog2016 (7) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order under section 250(6) of the Income Tax Act, 1961 (in short 'the Act'). ITA No.102/Chd/2016 (Assessee's Appeal) : 2. The ground raised by the assessee read as under : "1. That on the facts, circumstances and legal position of the case, the Worthy CIT(A) in Appeal No. 47/14-15 dated 02.02.2015 has erred in passing that order in contravention of the provisions of Section 250(6) of the Income Tax Act, 1961, to the extent of not allowing some of the grounds raised by the appellant. 2. That on law, facts and circumstances of the case, Worthy CIT(A) was not justified in sustaining the action of Ld. AO wherein he was not justified in re-opening the impugned assessment u/s 147/148 of the Act. 3. That on law, facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 1,42,64,299/-. 4. Before the learned CIT (Appeals), a legal ground as to non-issuance of notice under section 143(2) of the Act was raised. It was contended that the Assessing Officer has erred in framing assessment under section 147 r.w.s.143(3) of the Act even when no notice under section 143(2) of the Act was issued and served on the assessee and, hence the assessment deserves to be quashed and declared null and void. After considering the submissions of the assessee, the learned CIT (Appeals) observed that from the assessment order, it is gathered that the learned counsel for the assessee attended the re-assessment proceedings regularly and has never objected regarding issue and service of notice under section 143(2) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onics Asia Pte Ltd. vs. DGIT & Ors. [2012] 341 ITR 247 (Del.) for the proposition that notice under section 143(2) of the Act is mandatory for proceedings to be completed under section 147 of the Act. Further reliance was placed on the judgment of Hon'ble Supreme Court in the case of ACIT & Anr. Vs. Hotel Blue Moon (2010) 321 ITR 362 (SC). 6. The learned D.R. relied on the order of the learned CIT (Appeals) and further stated that section 147 r.w.s.148 of the Act is a code in itself and there is no need to go into the provisions of section 143(2) of the Act for this purpose. Notice under section 148 of the Act is a statutory notice and enough for making assessment or re-assessment under section 147 of the Act. 7. We have heard the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.]" 8. From the bare perusal of the above section, we see that a deeming fiction has been created by this section. In case, an assessee cooperates during the assessment even if no notice has been served on him, it is deemed to be served upon him in time as per the provisions of the Act. The provisions of this section clearly laid down the circumstances under which the deeming fiction has to come into force. These conditions have been stated to be as (a), (b) and (c), which talks about the situatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139:] 10. From the perusal of the above provisions, it is quite clear that the Assessing Officer has to issue and serve a notice under section 148 of the Act to the assessee before making assessment under section 147 of the Act. The notice under section 148 of the Act requires the assessee to furnish his ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is allowed. ITA No.169/Chd/2016 (Revenue's Appeal) : 14. Since we have already quashed the order of the Assessing Officer while adjudicating ITA No.102/Chd/2016, the appeal of the Department becomes infructuous and we do not find any need to adjudicate the same. 15. The appeal of the Revenue is dismissed. ITA No.103/Chd/2016 (Assessee's Appeal) : 16. It is relevant to observe here that the facts and circumstances of this case are similar to the facts and circumstances in No.102/Chd/2016 and the findings given in ITA No.102/Chd/2016 shall apply to this case also with equal force. The order of the Assessing Officer is hereby quashed. 17. The appeal of the assessee is allowed. ITA No.170/Chd/2016 (Revenue's Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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