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2016 (7) TMI 316 - ITAT CHANDIGARH

2016 (7) TMI 316 - ITAT CHANDIGARH - TMI - Reopening of assessment - Held that:- 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 return of income within the time specified in the notice. This return has to be in the prescribed form and in the prescribed manner. It has been very categorically p .....

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Act, which is deemed to be filed under section 139 of the Act and in case the Assessing Officer wants to proceed with the return filed by the assessee, he has to issue a notice under section 143(2) of the Act. Any assessment framed without issue of notice under section 143(2) of the Act, suffers from Jurisdictional error. In view of the above, we hereby quash the order of the Assessing Officer, which was made without issue of notice under section 143(2) of the Act. - Decided in favour of assesse .....

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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. Tha .....

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for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same." 3. Briefly, the facts of the case as stated in the assessment order are that the original return in this case declaring total income of ₹ 30,10,400/- was filed by the assessee as on 14.8.2011 and the case was processed under section 143(1) of the Act as on 12.10.2011. Thereafter, the case of the assessee was reopened after recording reasons and notice under section 148 of the Act .....

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ted 25.9.2014 was issued to the assessee along with detailed questionnaire. After a detailed discussion, the Assessing Officer passed an order under section 147 r.w.s. 143(3) of the Act dated 31.12.2014 making assessment at an income of ₹ 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 A .....

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rovisions of section 292BB of the Act, where an assessee has appeared in any proceedings or cooperated in any inquiry relating to an assessment or re-assessment, it shall be deemed that any notice under any provisions of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act. In view of this, he held that notice under section 143(2) of the Act is duly issued and served upon the assessee and in this way, this ground r .....

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B of the Act is relevant only for service of notice and not for non-issuance of statutory notice under section 143(2) of the Act. He placed reliance on the judgment of the Punjab & Haryana High Court in the case of CIT Vs. Cebon India Ltd. (2012) 347 ITR 583(P&H) for the proposition that section 292BB of the Act is relevant only for non-service of a notice and not for non-issuance of notice. Further reliance was placed on the judgment of Delhi High Court in the case of Alpine Electronics .....

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here 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 learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. From the order of the learned CIT (Appeals), we observe that there is no quarrel to the fact that in the present .....

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ice under section 143(2) of the Act, the assessment framed under section 147 r.w.s. 143(3) of the Act is valid in the background of provisions of section 292BB of the Act. The provisions of section 292BB read as under : "[Notice deemed to be valid in certain circumstances. 292BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be .....

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quot; 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 situ .....

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assume jurisdiction under respective sections. Reliance placed by the learned counsel for the assessee on the judgment of the Punjab & Haryana High Court in the case of Cebon India Ltd. (supra) is not out of place, whereby it has been very categorically held that absence of a statutory notice cannot be held to be curable under section 292BB of the Act. 9. As regards the arguments of the learned D.R. that section 147 r.w.s. 148 of the Act, are a complete code in itself and there is no need f .....

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urn of 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 .....

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as may be, apply accordingly as if such return were a return required to be furnished under section 139' of the Act. Therefore, the provisions of section itself negate the arguments taken by the learned D.R. that once issuing notice under section 148 of the Act, the Assessing Officer cannot go into the provisions of other sections. Once the assessee files return in pursuance of notice under section 148 of the Act, which is deemed to be filed under section 139 of the Act and in case the Asses .....

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