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TMI Blog2017 (11) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... income from commercial properties. The return of income for the year under consideration was f i led by him on 26.09.2008 declaring total income of Rs. 14,84,171/-. In the assessment originally completed under section 143(3) vide order dated 19.11.2010, the total income of the assessee was determined by the Assessing Officer at Rs. 15,78,000/-. On the basis of AIR information, the said assessment was subsequently reopened by the Assessing Officer and a notice under section 148 was issued by him to the assessee after recording the reasons. In pursuance of the said notice, assessment under section 143(3)/147 was completed by the Assessing Officer vide an order dated 29.02.2016 determining the total income of the assessee at Rs. 35,93,080/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,12,566.65 paid by A/c payee cheque to Bonzana Portfolio Ltd. against recovery of Rs. 5,21,582/- and bank charges of Rs. 1223.29 which were also verifiable from the record and were required to be given due benefit while making addit ion as undisclosed income. 4. For that, without prejudice to the above and in view of fact s and circumstances of the case, the Ld. Commissioner of I. Tax (Appeals),, ought to have deleted at least the addition of Rs. 18,51,679.94 in view of material on record". 4. During the course of appellate proceedings before the Tribunal, the assessee has also raised the fol lowing two additional grounds and filed an application seeking admission of the same: - "1. Because that the Id. DCIT, Circle-1, Durgapur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der under section 143(3)/147 and in the absence of issue of such statutory notice, the assessment made by the Assessing Officer under section 143(3)/147 is bad-in-law and is void ab initio. As per the direction of the Tribunal, the ld. D.R. has produced the relevant assessment record which shows that the notice under section 143(2) was not issued by the Assessing Officer to the assessee before framing the assessment under section 143(3)/147 and this position clearly evident from the assessment records is not disputed even by the ld. D.R. He, however, has relied on the provisions of section 292BB introduced in the Statute w.e. f . 1s t April, 2008 in support of the revenue's case that the assessee having participated in the assessment procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 321 ITR 362] and the fai lure to issue notice under section 143(2) in compliance with such statutory requirement is not covered under section 292BB. In support of this content ion, he has relied on the decision of the Hon'ble Allahabad High Court in the case of ACIT -vs. - Greater Noida Industrial Development Authority [379 ITR 14], wherein i t was held that the deeming fiction under section 292BB of the Act is with regard to "service of notice" and since the initial requirement of "issuance of notice" was not met by the Assessing Officer, the deeming fict ion under section 292BB is not applicable. It was held that there was a defect on the part of the Assessing Officer in failing to issue notice under section 143(2) within the specified pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional ground no. 2 raised by the assessee and allow the same by holding that the assessment made by the Assessing Of f icer under sect ion 143(3)/147 without issuance of the statutory notice under section 143(2) is bad in law and the same is liable to be cancel led. I order accordingly. 9. As a result of the decision rendered above on the preliminary issue raised by the assessee in additional ground no. 2 cancelling the assessment made by the Assessing Officer under section 143(3)/147 by holding the same to be bad in law, the issues raised by the assessee in additional Ground No. 1 as well as in the original Grounds No. 1 to 4 have become infructuous. I, therefore, do not consider it necessary to adjudicate upon the same. 10. In the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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