TMI Blog2017 (2) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 1471144 of the Act. 2 That since no notice under section 143(2) of the Act was issued and served on the appellant subsequent to the filing of the return accepted by the learned Assessing Officer, the assessment so made under section 1471144 of the Act is otherwise bad in law and wholly unsustainable. 2.1 That the finding that return filed in response to 1481142(1) was beyond prescribed time limit in the notice thus was treated nonest and there was no need to issue u/s 143(2) is factually incorrect, legally misconceived and untenable. 2.2 That the judgment relied upon by the learned Commissioner of Income Tax (Appeals) in the case of CIT v Areva T D India Ltd. v. ACIT reported 294 ITR 233 (Mad) wherein it has been held if appellant has been participating in assessment proceedings failure to issue 143(2) does not make re-assessment proceedings void is wholly inapplicable on the fact of the appellant and hence untenable. 3 That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in sustaining an addition of ₹ 9,00,000/- to cover all possible leakages in the account of the assessee on estimated basis. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the Appeal before the Ld. CIT(A), who impugned order dated 31.8.2016 has dismissed the appeal of the assessee. 4. Against the aforesaid order dated 31.8.2016 passed by the Ld. CIT(A), assessee is in appeal before the Tribunal. 5. At the time of hearing ld. Counsel of the assessee has only argued the ground no. 2 i.e. legal ground and stated that since no notice under section 143(2) of the I.T. Act was issued and served on the assessee subsequent to the filing of the return accepted by the AO, the assessment so made u/s. 147/144 of the I.T. Act, is otherwise bad in law and wholly unsustainable. He further stated that the finding that return filed in response to 148/142(1) was beyond prescribed time limit in the notice thus was treated nonest and there was no need to issue u/s 143(2) is factually incorrect, legally misconceived and untenable. It was further stated that the judgment relied upon by the learned Commissioner of Income Tax (Appeals) in the case of CIT v Areva T D India Ltd. v. ACIT reported 294 ITR 233 (Mad) wherein it has been held if appellant has been participating in assessment proceedings failure to issue 143(2) does not make re-assessment proceedings voi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(2) of the Act was issued and served on the assessee subsequent to the filing of the return accepted by the AO, hence, the assessment so made under section 147/144 of the I.T. Act is otherwise bad in law and not sustainable in the eyes of law. Hence, the assessment so framed by the AO is totally illegal and needs to be quashed. My view is fully supported by the following judgment of the Hon ble Supreme Court of India, Hon ble High Courts, Coordinate Benches of the ITAT decisions:- ACIT Anr. vs. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)] HELD: It is mandatory for the AO to issue notice u/s 143 (2). The issuance and service of notice u/s 143 (2) is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid Reassessment-----Notice----- Assessee intimating original return be treated as fresh return--- Reassessment proceedings completed despite assessee filing affidavit denying serviced of notice under section 143(2)---- Assessing Officer not representing before Commissioner (Appeals) that notice had been issued---- Reassessment order invalid due to want of notice under section 143(2)--- Income-tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), and in the light of the fact that the very basis of the reassessment was the failure on the part of the assessee in not disclosing the capital gains arising on the transfer of property for assessment and that admittedly the assessee had requested the officer to accept the original return as a return filed in response to Section 148 of the Act, we hold that there was total failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is mandatory one as held by the Apex Court. Alpine Electronics Asia Pte Ltd. vs. DGIT Ors: [(2012) 341 ITR 247 (Del) Held: The service of notice u/s 143(2) within the statutory time limit is mandatory and is not an inconsequential procedural requirement. Omission to issue notice u/s 143 (2) is not curable and the requirement cannot be dispensed with. S. 143(2) is applicable to proceedings u/s 147 148. JYOTI PAT RAM VS. ITO [(2005) 92 ITD 423 (Lucknow) - ShreeJai Shiv Shonhor Traders (P) Ltd. - A.Y. - 2008-09 Reassessment order passed under section 143(3)/148 without issue of a valid notice under section 143(2) was illegal. RAJ KUMAR CHA WLA AND ORS. VS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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