TMI Blog2017 (11) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order, therefore, cannot be condoned by referring to section 292BB of the Act” and such failure is fatal to the order of reassessment The assessment made by the Assessing Officer under section 143(3)/147 without issuance of the statutory notice under section 143(2) is bad in law and the same is liable to be cancelled. - Decided in favour of assessee. - I.T.A. No. 526/KOL/2017 - - - Dated:- 26-9-2017 - Shri P.M. Jagtap, Accountant Member For The Assessee : Shri Arvind Agarwal , Advocate For The Department : Shri Sai len Samaddar, Addl . CIT, D.R. ORDER Per Shri P.M. Jagtap, A.M. . : This appeal f i led by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals), Durg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ld. CIT(Appeals), the assessee has f i led this appeal before the Tribunal on the fol lowing grounds:- 1. For that, in view of fact s and circumstances of the case, the Ld. Commissioner of Income Tax (Appeal), Durgapur erred on facts as wel l as in law in sustaining the addition of ₹ 20,15,083/- made by assessing officer as net undisclosed income on account of deposits in Axis Bank. 2. For that, without prejudice to the above, Ld. Commissioner of Income Tax Appeal), Durgapur erred on facts as wel l as in law in observing that there was very meagre withdrawal of cash ignoring the fact that total withdrawal of ₹ 15,37,800/- was duly appearing in the Bank Statement produced before him and the said figures were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147/143(3) dated 29th February 2016 without issue of the statutory notice u/s 143(2), and as such his reassessment order is not good in law and void ab initio . 5. As the issues sought to be raised by the assessee in the additional grounds are purely legal in nature and all the facts relevant for adjudication of the same are available on record, the additional grounds as raised by the assessee are admit ted by me by relying on the decision of the Hon ble Supreme Court in the case of National Thermal Power Co. Limited vs. - CIT [229 ITR 383 (SC)]. Since the preliminary issues are raised by the assessee in the additional grounds challenging the validity of the assessment made by the Assessing Officer under section 143(3)/147, I now pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any object ion in any proceeding or inquiry under this Act that the notice was- ( a) Not served upon him; or ( b) Not served upon him in time; or ( c) Served upon him in an improper manner. Provided that nothing contained in this sect ion shall apply where the assessee has raised such objection before the completion of such assessment or reassessment . 7. As submitted by the ld. Counsel for the assessee, the provisions of section 292BB are appl icable where there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of notice is concerned and not with regard to fai lure to issue notice. It was held that the failure of the Assessing Officer to issue notice under section 143(2) prior to f inalizing the reassessment order, therefore, cannot be condoned by referring to section 292BB of the Act and such failure is fatal to the order of reassessment. The ld. Counsel for the assessee has also placed rel iance on the decision of the Hon ble Kerala High Court in the case of Travancore Diagnostic Pvt. Limi ted vs. - DCIT [390 ITR 167 (Kerala)], wherein it was held that i f a notice under section 143(2) has not been issued, the Assessing Officer cannot claim the benef it under section 292BB of the Act and in the absence of not ice under section 143( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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