TMI Blog2017 (7) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the assessment order without issuing notice u/s.143(2) of the Income Tax Act, 1961 (herein after referred to as the Act ). 2. The appeal has been filed with a delay of Two Hundred and Sixty Eight days. In the condonation petition filed, it is stated that assessee had approached one Shri. V. Ramnath, Chartered Accountant on 25.03.2015 for advising on the course of action that was to be taken on the order of the ld. Commissioner of Income Tax (Appeals) received by him on 13.03.2015. It is also stated in the affidavit that Shri. V. Ramnath, had instructed his employee one Shri. M. Karthik Kumar to file the appeal which were signed by the assessee. The affidavit says that Shri. M. Karthik Kumar had left the office of Shri. V. Ramnath, without informing that the appeal was not filed. As per assessee, it came to know that appeal was not filed only on receiving notice for levy of penalty u/s.271(1) (c) of the Act. As per assessee immediately when the matter came to his notice, he ensured that the appeal was filed. As per assessee the delay of 268 days, in filing the appeal was not due to any negligence. 3. Opposing the delay petition, ld. Departmental Representative submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax (Appeals) was incorrect. Ld. Authorised Representative also submitted that ld. Commissioner of Income Tax (Appeals) had relied on a judgment of Delhi High Court in the case of CIT vs. Madhya Bharat Energy Corporation Ltd 337 ITR 389 for holding the assessment to have been validly done. As per ld. Authorised Representative the said judgment was recalled by Delhi High Court in a review petition filed by the concerned assessee. Reliance was placed on the judgment of Hon ble Madras High Court in the case of Sapthagiri Finance Investments vs. ITO (2013) 90 DTR 289 that of Hon ble Delhi High Court in the cases of Pr. Commissioner of Income Tax vs. Silver Line, 383 ITR 455 and Pr. Commissioner of Income Tax vs. Shri Jai Shiv Shankar Traders Pvt. Ltd 383 ITR 448. 6. Per contra, ld. Departmental Representative submitted that the assessment was completed based on the return filed by the assessee pursuant to notice issued u/s. 148 of the Act, accepting the income returned. According to ld. Departmental Representative assessee having participated in the assessment proceedings, want of notice u/s.143(2) of the Act stood cured by Sec. 292BB of the Act. 7. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(3). In the event, the assessee is not filing the return or not complying with the notice under Section 143(2)/142, the Officer is authorised to complete the assessment ex parte under section 144. The Apex Court further pointed out that notice under Section 143(2) would become necessary only where the block return does not conform undisclosed income inferred by the authorities. Thus, if an assessment is to be completed under Section 143(3) read with Section 158BC, notice under Section 143(2) should be issued within one year from the date of filing of the block return. The Apex Court further held that omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable, and therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The legislation referring to the compliance of the provisions under Section 143, 144 and 145 of the Act is a legislation by incorporation. Thus, where the Assessing Officer repudiates the return filed by the assessee in response to notice under Section 158BC(a), the Assessing Officer must necessarily issue notice under Section 143(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arpur Cold Storage (P) Ltd. (2014) 50 Taxmann.com 105 (All) it was held as under : 10. Sec. 292BB of the Act was inserted by the Finance Act, 2008 w.e.f. 1st April, 2008. Sec. 292BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated 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 s. 292BB of the Act, however, carves out an exception to the effect that the section shall not apply where the assessee has raised an objection before the completion of the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, with no notice issued under s. 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver of right of notice to be issued under s. 143(2) of the Act. 18. As already noticed, the decision of this Court in CIT vs. Vision Inc. (supra) proceeded on a different set of facts. In that case, there was a clear finding of the Court that service of the notice had been effected on the-assessee under s. 143(2) ofthe Act. As already further noticed, the legal position regarding s. 292BB has already been made explicit in the aforementioned decisions of the Allahabad High Court. That provision would apply insofar as failure of service of notice was concerned and not with regard to failure to issue notice. In other words, the failure of the AO, in reassessment proceedings, to issue notice under s. 143(2) of the Act, prior to finalising the reassessment order, cannot be condoned by referring to s. 292BB of the Act . Thus, it is clear that Sec. 292BB of the Act can cure a case of non service of notice and not a non-issue of notice. In the case before us, as already mentioned by us, there was no issue of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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