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2016 (7) TMI 703 - PUNJAB AND HARYANA HIGH COURT

2016 (7) TMI 703 - PUNJAB AND HARYANA HIGH COURT - [2016] 385 ITR 138 - Assessment u/s 153A - Mandatory requirement of issuance of notice under section 143(2) of the Act in respect of assessment proceedings under section 153A - Held that:- The question is no longer res integra as the Delhi High Court in Ashok Chaddha's case (2011 (7) TMI 252 - Delhi High Court ) delving into identical matter had opined in the negative holding that there was no specific provision in the Act requiring the assessme .....

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onation of delay of 164 days in filing the appeal. 2. Notice of the application was given to the respondent. For the reasons stated in the application and after hearing learned counsel for the parties, the delay of 164 days in filing the appeal is condoned. CM stands disposed of. I. T. A. No. 112 of 2015 3. This appeal has been preferred by the appellant under section 260A of the Income-tax Act, 1961 (in short, "the Act") against the order dated November 22, 2013, Annexure A.4 passed b .....

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of block assessment be considered as evidence/ material found in consequence of the search so as to sustain the addition of income in the block assessment ? (III) Whether the figure disclosed in the opening balance-sheet in a particular year represents the income earned in the previous years and thus addition, if any, could be made to the relevant/previous years and not in the subsequent year ?" 4. A few facts relevant for the decision of the controversy involved as narrated in the appeal .....

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nuary 30, 2009 declaring an income of ₹ 1,49,250. Thereafter, notices under sections 143(2) and 142(1) of the Act were issued to the assessee on June 10, 2010. The Assessing Officer vide order dated December 30, 2010, annexure A.1 made addition of ₹ 5,25,000 on account of construction of the house and a sum of ₹ 9,95,029 on account of the difference in the capital reflected in the balance-sheet and computed the taxable income to be ₹ 16,69,280. Penalty proceedings were al .....

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g Officer. However, the remaining part of the impugned order was kept intact and upheld by the Commissioner of Income-tax (Appeals). Still dissatisfied by the order, the assessee filed appeal before the Tribunal inter alia on the ground that the stipulated time period for service of notice under section 143(2) of the Act shall also be applicable in respect of assessment framed under section 153A of the Act. Learned counsel for the appellant-assessee sought adjournment on the due date of hearing .....

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filed the Income-tax return on January 30, 2009. Notice under section 143(2) of the Act was issued to the assessee on June 10, 2010 much beyond the stipulated time period of six months. In view of this, the Assessing Officer did not have any jurisdiction to proceed with the matter. Learned counsel for the assessee relied upon judgments in Asst. CIT v. Hotel Blue Moon [2010] 321 ITR 362 (SC), Virendra Dev Dixit v. Asst. CIT [2011] 331 ITR 483 (All), CIT v. B. Satyanarayana [2013] 356 ITR 323 (AP .....

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here is any mandatory requirement of issuance of notice under section 143(2) of the Act in respect of assessment proceedings under section 153A of the Act or not. The question is no longer res integra as the Delhi High Court in Ashok Chaddha's case (supra) delving into identical matter had opined in the negative holding that there was no specific provision in the Act requiring the assessment made under section 153A of the Act to be after issuance of notice under section 143(2) of the Act. Af .....

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C, notice under section 143(2) must be issued and omission to do so cannot be a procedural irregularity and the same is not cur able. It is to be noted that the abovesaid judgment was in the context of section 158BC. Clause (b) of section 158BC expressly provides that "the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and .....

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time and thus not applicable to the present case. The case of Pawan Gupta [2009] 318 ITR 322 (Delhi) related to a mandatory issue of notice under section 143(2) of the Act in the case of regular assessment as also on block assessment. This being not a case of assessment based on search under section 153A, the same is not applicable to the present case. In the case of Raj Kumar Chawla [2005] 277 ITR (AT) 225 (Delhi) [SB] relied upon by learned counsel for the assessee was that of the Tribunal, wh .....

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o, this court has held that in the absence of any specific pro vision under section 147 of the Act, the issuance of notice under sec tion 143(2) cannot be held to be a mandatory requirement. It is also to be noted that section 153A provides for the procedure for assessment in case of search or requisition. Sub-section (1) starts with a non obstante clause stating that it was 'notwithstanding' anything contained in sections 147, 148 and 149, etc. Clause (a) thereof provides for issuance o .....

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ion 139. Learned counsel relies upon R. Dalmia v. CIT [1999] 236 ITR 480 (SC) wherein the question of issue of notice under section 143(2) was examined with reference to section 148 by the Supreme Court in the context of section 147. The apex court held as under (page 488) : 'As to the argument based upon sections 144A, 246 and 263, we do not doubt that assessments under section 143 and assessments and reassessments under section 147 are different, but in making assessment and reassessments .....

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