TMI Blog2017 (11) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... acts in passing of the order u/s 147/143(3) dated 30th March, 2015 without issue of the statutory notice u/s 143(2) of the IT act, 1961 and as such his reassessment order is not good in law and void abinitio. 3. As this is a legal ground, challenging the jurisdiction of the Assessing Officer. As all the facts required to adjudicate this grounds are available on record, I admit this additional ground by following the judgment of the Hon ble Supreme Court in the case of NTPC Ltd. 4. After hearing rival contentions perusing the papers on record and order of the authorities below, I hold as follows. 5. I have perused the assessment record produced by the Ld. Departmental Representative. On perusal of the order sheet entries made from 20.03.2014, it is clear that no notice under section 143(2) of the Income Tax Act, 1961 (Act) was issued to the assessee. The submission of the learned DR that the assessee did not file a return of income and hence no notice is required to be issued under section 143(2) of the Income Tax Act, 1961 (Act) is factually incorrect. The assessee had filed its return of income. On these facts the proposition of law is brought out by the SMC 2 , Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be treated as return of income filed in response to notice u/s 148. He has been asked to explain as to why a sum of ₹ 1,00,00,000/- (Rs. One Crore) received from Wifi Networks Pvt. Ltd. should not be treated as revenue receipt and taxed accordingly. The case is posted for final hearing on 20.10.2010 at 3.30 pm. No further adjournment will be granted. If no compliance is forthcoming on that day, assessment will be completed bringing to tax ₹ 1.00 (Rs. One Crore) as revenue receipt as per the provisions of sec. 28 (va) of the Act. 8. A look at section 143(2) is called for at this juncture. It is reproduced hereunder: 143(2) where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the AO shall (i) where he has reason to believe that ny claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced any evidence or particulars specified therein or on which the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were completed under section 143(3) read with section 147. Or in other words AO accepted the request of the assessee. This in turn makes it obligatory to issue notice u/s 143(2) after the request by the assessee to treat his earlier return as filed in pursuance to notices u/s 148 of the IT Act was received. This request, in the given case, has been made only on 05.10.2010. Any issue of notice prior to that date cannot be treated as a notice on a return filed by the assessee pursuant to a notice u/s 148 of the Act. Or in other words, there was no valid issue of notice u/s 143(2) of the IT act, and the assessments were done without following the mandatory requirement u/s 143(2) of the IT act. This in our opinion, render the subsequent proceedings all invalid. Learned CIT (A) had only adjudicated on a position where there was no service of notices u/s 143(2) of the IT Act. He had not dealt with the scenario, where notice was issued prior to the filing of return by the assessee. We, therefore, quash the assessment done for the impugned assessment years. Since the appeals of the assessee are allowed on its ground 3, other grounds are not adjudicated. ITAT, E Delhi Bench decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity Non Service of notice under section 143(2) within time Notice served on the last date after office hours by affixture as no authorized person was present at assessee s premises is not a valid service of notice Assessment framed in pursuance of such notice is not valid It is immaterial that the assessee appeared in the proceedings. CIT vs Cebon India Ltd. (2012) 347 ITR 583 (P H) 6. We find that the concurrent finding has been recorded by the CIT (A) as well the tribunal on the question of date of service of notice. Notice was not served within the stipulated time. Mere giving of dispatch number will not render the said finding to be perverse. In absence of notice being served, the AO had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under section 292BB of the Act. CIT vs Mr. Salman Khan, ITA No. 508 of 2010 1. In the present case, reassessment order passed under section 143(3) r/w 147 of the Income Tax Act, 1961 is held to be bad in law in view of the fact that the assessing officer has not issued notice under section 143(2) after issuing notice under section 148 of the Income Tax Act, 1961. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Finance Act, 2008, has no retrospective effect and is to be construed prospectively. The assessment order under appeal is 2001-02. Therefore, the provision of section 292BB of the IT Act would not apply in the case of the assessee. Further, no nnotice u/s 143(2) has been issued or served upon the assessee. Therefore, the decision of Hon ble Punjab Haryana High Court in the case of Cebon India Ltd. (supra) squarely applies against the revenue. It was held in this case that absence of notice is not curable defect u/s 292BB of the IT Act. Considering the above discussion and the case laws cited above, the sole objection of the Revenue is not maintainable. Therefore, the Ld. CIT(A) was justified in setting aside the entire assessment order. We, therefore, do not find any infirmity in the order of the Ld. CIT(A) for interference. ( v) The Hon ble Mumbai Bench of the ITAT has, in the case of Sanjeev R Arora v. ACIT [IT (SS) No. 103/Mum/2004 dated 25.07.2012] recorded its findings as under. Even the irregularity in proper service of notice which can be treated as curable under section 292BB of the Income Tax Act is only in the cause where the notice 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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