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TMI Blog2016 (8) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the assessee, therefore, the assessment orders were illegal and void ab initio therefore, these may be quashed. The learned authorised representative submitted that this being a legal issue, the assessee was entitled to raise the issue at this forum. It was also submitted that in the earlier hearing the Hon'ble Bench had directed to the learned Departmental representative to produce the assessment records to verify the contention of the assessee. 4. The learned Departmental representative, however, had filed an application for adjournment of cases but admitted that assessment orders were available with him. We found that since the assessee had raised a jurisdictional issue which fact was verifiable from the assessment records available with the learned Departmental representative, therefore, we proceeded to hear the cases and adjournment application was rejected and additional ground of appeal was admitted. 5. The learned Departmental representative, after going through the assessment records could not find the service of notice under section 143(2) of the Act, but he submitted that notices under section 143(2) in these cases was not required to be issued and served as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the material placed on record and have also gone through the written submissions filed by the learned Departmental representative. For the sake of convenience the written submissions filed by the learned Departmental representative are made part of this order and are reproduced as under : "Written submissions on the ground of appeal of the assessee regarding non-service of notice under section 143(2) of the Income-tax Act, 1961 As per directions of the Hon'ble Income-tax Appellate Tribunal, Amritsar Bench, Amritsar given during the course of hearing of the case on July 12, 2016, following written submissions in the case are made without prejudice to my application seeking adjournment in the case under reference filed before the Hon'ble Tribunal : 1. Information was received that the assessee had made certain supplies to the Army Authorities through National Co-operative Consumer Federation of India Limited, Jammu in violation of the Central Excise Rules. After the receipt of information and after conducting further enquiries, a survey on the business premises of the assessee Shri Anil Gupta was carried out on March 25, 2008 under section 133A of the Income-tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29, 2008. 8. Assessment order was passed by the Assessing Officer on December 30, 2008 under section 144 read with section 147 of the Income-tax Act. 9. From the sequence of events mentioned above, it is clear that the assessee deliberately kept on delaying the filing of return in response to notice under section 148 dated March 31, 2008 of the Act till December 29, 2008. 10. The returns filed by the assessee for the assessment years 2004- 05 and 2005-06 were non est and invalid returns since these were filed much beyond the time period allowed to the assessee from time to time as per notice under section 148 of the Act. Therefore, no notice under section 143(2) of the Act was required to be issued for the assessment years 2004-05 and 2005-06. Thus, the additional ground of appeal raised by the assessee deserves to be dismissed since it is devoid of any legal merit. 11. The provisions of section 143(2) of the Income-tax Act, 1961 are reproduced hereunder : 'Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalid return, i.e. this is no return in the eyes of law. Therefore, the Assessing Officer was under no legal obligation to issue notice under section 143(2) of the Income-tax Act, 1961 for the assessment years 2004-05 and 2005-06 in this case. The provisions of section 148 of the Act are reproduced below : 'Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which 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.' 13. Without prejudice to the legal position mentioned above, even if the return filed by the assessee for the assessment years 2004-05 and 2005-06 on December 29, 2008 is treated as filed in response to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee which also remained uncomplied. Subsequently, show-cause letter was issued to the assessee on December 23, 2008 giving final opportunity to furnish the required information desired by the Assessing Officer on or before December 29, 2008 and vide letter dated December 29, 2008 the assessee intimated that he had filed the returns on December 29, 2008. The crux of the arguments of the learned Departmental representative is that the assessee deliberately kept on postponing the filing of returns till December 29, 2008 as he knew that assessments were becoming time barred by December 31, 2008 and therefore, only two days were left for completion of assessment. In view of these facts and circumstances, the learned Departmental representative has prayed that the additional ground of appeal taken by assessee regarding non-service of notice under section 143(2) be dismissed, as first of all the returns filed by the assessee were not valid returns and secondly there was no time available with the Assessing Officer to issue notices under section 143(2) of the Act. 8. On the other hand, the learned authorised representative had maintained that the returns were filed in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble sub-section of section 139 is section 139(9) which deals with the defective returns and invalid returns. For the sake of convenience the provisions of section 139(9) are reproduced below. "139.(9) Where the Assessing Officer considers that the returns of income furnished by the assessee is defective, he may intimate the defect to the assessee and give him an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the Assessing Officer may, in his discretion, allow ; and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provisions of this Act, the return shall be treated as an invalid return and the provisions of this Act shall apply as if the assessee had failed to furnish the return : Provided that where the assessee rectifies the defect after the expiry of the said period of fifteen days or the further period allowed, but before the assessment is made, the Assessing Officer may condone the delay and treat the return as a valid r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on jurisdiction without issuing of notice under section 143(2) cannot be cured by taking recourse to deeming fiction under section 292BB of the Act. The relevant findings of the Hon'ble court are reproduced below : "Section 292BB was inserted by the Finance Act, 2008 with effect from April 1, 2008. Section 292BB provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceedings or co-operated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the assessee, has been duly served upon him in time in accordance with the provisions of the Act. The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him ; or (ii) not served upon him in time ; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to section 292BB however, carves out an exception to the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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