TMI Blog2017 (12) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... INDIA). The assessment order is passes without issue of notice u/s 143(3) of the Act and this defect cannot be cured by taking recourse to the provisions of section 292BB of the Act. Thus AO had no valid jurisdiction to pass the assessment order and the very foundation of the assessment proceedings is bad in law. - Decided in favour of assessee. - IT APPEAL NO. 57/AGRA/2014 And CO NO. 7/AGRA/2014 - - - Dated:- 28-9-2017 - MR. A. D. JAIN, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER For The Appellant : Inderjeet Singh, CIT D.R For The Respondent : Ashok Vijay Wargiya, CA and Ankit Vijay Wagiya, Adv. ORDER Dr. Mitha Lal Meena, Accountant Member The captioned appeal, by the Revenue and cross objection by the assessee is filed against the orders of the Ld. CIT (A), Gwalior dated 31.12.2013 for the AY 2010-11. 2. In ITA No. 57 /AGR/2014, the department has taken up following grounds of appeal: - 1. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition of ₹ 7,48,473/- on account of unexplained jewellery. 2. On the facts and in the circumstances of the case, the Ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, passed by the AO, without issuing of notice u/s 143(2) of the Act. This issue is related to the question of jurisdiction of the Assessing Officer. As it goes to the route of the matter, it is necessary to be disposed of first in the interest of justice. In the objection, the assessee has challenged, the legality of the assessment order passed u/s 143(3) of the Income Tax Act 1961 (In short, the Act ), applying the legal and mandatory provisions of section 143(2) of the Act, as regards to issue of legal and mandatory notice. The ld. AR relied on the case of Asstt. CIT v. Hotel Blue Moon [2010] 321 ITR 362 (SC) and CIT v. Mukesh Kumar Agrawal [2012] 345 ITR 29 (All.). 4. The brief facts of the case are that the assessee is an individual carrying on business of brokerage. In this case, search and seizure operation was conducted u/s132 of the Act on 11.03.2010. The assessee had submitted his return of income on 24.08.2011, declaring total income of ₹ 9,35,130/-, the assessment of which was completed u/s 143(3) of the Act determining total income of ₹ 30,32,06,543/- after making various additions vide assessment order dated 23.12.2011. 5. Aggrieved, by the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, at the time of hearing pointed out that the year under consideration being the search year, notice u/s 153A was neither required to be issued, nor in fact issued in this case. The return of income was furnished on 24.08.2011, as per the provisions of section 139 of the Act. The assessment for the previous year /Financial year 2009-10 relevant to assessment year 2010-11, i.e., the search year, was completed u/s 143(3) of the Act, vide assessment order dated 23.12.2011, i.e., under the regular assessment procedure, which is evident from the page 1 of the assessment order. He submitted that after filing of the return of income on 24.08.2011, u/s 139 of the Act, a notice u/s 143(2) was to be mandatorily issued. He stated that non-issue of notice u/s 143(2) prior to completion of assessment is not a curable defect, as held in the case of Hotel Blue Moon (supra), holding that If an assessment is to be completed u/s 143(3) read with section 158BC, notice u/s 143(2) should be issued within one year from the date of filing of block assessment returns, and thus, omission on the part of assessing authority to issue notice u/s 143(2) cannot be considered as mere procedural irregularity an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s 143(2) is not a curable defect, as held in the case of Hotel Blue Moon (supra) (APB, page no. 1-5). Non-issue of notice u/s 143(2) cannot be saved by the provisions of section 292BB, as held in Cebon India Ltd. (supra) (APB, page no. 11-12) and Greater Noida Industrial Development Authority (supra) (APB, page no. 16-21). He submitted the case laws relied upon by ld. DR are distinguishable on facts. 6.7 He further explained that although the decision of the Hon ble Supreme Court in the case of Hotel Blue Moon (supra) is in relation to assessment completed u/s 158BC, holding that the non-issue of notice u/s 143(2) is not curable, the requirement of issue of notice u/s 143(2) of the Act is embodied in the provisions of section 143(3) of the Act also. Therefore, the issue involved in the appeal under consideration is covered by the decision in the case of Hotel Blue Moon (supra) and ratio involved in this decision will apply to the present appeal also. He also relied on the decision of the Hon ble Madras High Court in the case of CIT v. Gitsons Engg. Co. [2015] 370 ITR 87 where the decision in the case of Hotel Blue Moon (supra) is followed holding that: Provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, a search u/s 132 of the I. T. Act, 1961 was conducted from 11.03.2010 to 12.03.2010 as is verifiable from the copy of Panchnama, which is placed at Page 33-35 of paper book (Relevant page 35), although, the AO has mentioned the date of search as 11.03.2011 at page 1 of the assessment order. Meaning thereby, that the search was conducted from 11.03.2010 to 12.03.2010, i.e., during financial year 2009-10, relevant to assessment year 2010-11. 10. In pursuance of the search, notices 153A(1)(a), were to be issued to furnish the return of income in respect of each assessment year falling within the six assessment years as referred to in clause (b), meaning thereby, the six assessment years immediately preceding the assessment years relevant to the previous year in which the search was conducted. As the search in this case, was conducted from 11.03.2010 to 12.03.2010, i.e., during the previous year 2009-10 relevant to assessment year 2010-11, the six preceding years were 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09 relevant to assessment year 2004-05, 2005-06, 2006-07, 2007-08, 2008-09 and 2009-10, for the purpose of issue of notice u/s 153A(1)(a) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory provisions for issue of notice u/s 143(2) are given in sub-section (3) of section 143 of the Act, which is being reproduced hereunder: 143(3) - On the day specified in the notice issued in the sub-section (2) or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order inviting, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refund of any amount due to him on the basis of such assessment. Therefore, in view of this, the prerequisite condition for issuance of notice u/s 143(2) prior to making assessment u/s 143(3) of the Act, is embodied in the provisions of sections 143(3) and 158BC of the Act. 15. The decision of the Hon ble Supreme Court in the case of Hotel Blue Moon (supra) is in relation to assessment completed u/s 158BC, holding that the non-issue of notice u/s 143(2) is not curable. The requirement of issue of notice u/s 143(2) of the Act is embodied in the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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