TMI Blog2016 (7) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... far 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 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sustaining the action of Ld. AO wherein he was not justified in framing the impugned assessment even without issuing and serving the statutory notice u/s 143(2) of the Act. 4. That the appellant craves leave 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 dated 18.3.2014 was issued and duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 raised by the assessee was dismissed. 5. Aggrieved by this, the assessee has come up in appeal before us. At the outset, the learned counsel for the assessee drew our attention to the order of the learned CIT (Appeals) and stated that the learned CIT (Appeals) himself has admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 case notice under section 143(2) of the Act was not issued to the assessee. The fact of issuing notice under section 143(2) of the Act is also not coming out from the order of the Assessing Officer. This fact has not been controverted by the learned D.R. even before us. In view of this, since the learned CIT (Appeals) dismissed the ground of the assessee on the basis of provisions of section 292BB of the Act, the only issue remaining before us is to decide whether in the absence of issue of notice under section 143(2) of the Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice was not served upon the assessee or not served upon him in time or served upon him in an improper manner respectively. Therefore, we see that section talks about only the situation where the assessee raises the issue of non-service of a notice and still cooperates with the Department. Otherwise also, we are of the opinion that issuance of statutory notice cannot be dispensed with by the cooperation of the assessee. Since this notice forms the basis for Assessing Officer to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provided in the section that afterwards 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' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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