TMI Blog2016 (12) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. It does not, in any way, insulate the AO from default in issuing notice u/s 143(2) of the Act within the period of limitation contemplated therein. Considering the same, we are of the opinion, all the four appeals of the assessee are required to be allowed on technical grounds. - I.T.A. No.5276/M/2014, I.T.A. No.7119/M/2014, I.T.A. No.7120/M/2014, I.T.A. No.7121/M/2014 - - - Dated:- 9-12-2016 - SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER Appellant by : Shri Dhanesh Bafna Ms. Chandni Shah Respondent by : Shri Jabir Chauhan, CIT-DR O R D E R PER D. KARUNAKARA RAO, AM: There are four appeals under consideration. All these appeals are filed by the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee claimed the entire income (STCG + LTCG) as non-taxable in India in accordance with Article 13 of the India- Netherlands DTAA. In the assessment, after considering the submissions of the assessee in support of its claim as well as on perusal of the relevant provision of India-Netherlands DTAA, AO came to the conclusion that since the assessee is not fulfilled the conditions laid down in Article 1 read with Article 4 of the India- Netherlands DTAA, assessee is not eligible to claim benefit of the DTAA and accordingly AO denied the claim. Aggrieved with the said decision of the AO, assessee carried the matter in appeal before the first appellate authority. 5. During the proceedings before the first appellate authority, after consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 321 ITR 362 (SC) 7. Further, in response to the Ld DR‟s argument for the defects, if any, in issuance and service of notice u/s 143(2) of the Act, are curable b the provisions of section 292BB of the Act, Ld Counsel for the assessee brought our attention to various decisions viz (i) Travancore Diagnostics (P.) Ltd vs. ACIT (2016) 74 Taxmann.com 239 (Kerla); (ii) Pr. CIT vs. Shri Jai Shiv Shankar Traders (P) Ltd (2016) 383 ITR 448 (Delhi HC); (iii) CIT vs. Salarpur Cold Storage (P.) Ltd (2015) 228 Taxman 48 (Allahabad) and submitted that the provisions of section 292BB of the Act do no cure the defects of this kind. In this regard, Ld Counsel for the assessee relied on various other decisions ie (i) Rajib Saikia vs. ACIT [2015] 154 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the service of the same as required u/s 143(2) of the Act. It is obvious the re-assessment was made in this case without issuance of the said statutory and mandatory notice u/s 143(2) of the Act. 10. We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed before us and the cited decisions relied on by the Ld Counsel for the assessee. On hearing both the parties and on perusal of the ratios laid down in the above cited decisions as well as the contents of the AO‟s letter dated 17.10.2016, we find, considering the passive admission of the AO on the issue of the non-issuance of the statutory notice u/s 143(2) of the Act, which provides the basic jurisdiction in matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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