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TMI Blog2018 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that from the findings of the ld. Assessing Officer and the ld. CIT(A), it becomes amply clear that no notice u/s. 143(2) was issued to the assessee and therefore, the assessment order is liable to be quashed. Reliance in this respect was placed on a number of case laws mentioned in paper book pages A to M, which are as under : (i). ACIT & Anr. Vs. Hotel Blue Moon, 321 ITR 362(SC) (ii). Directorate of Income Tax vs. VR Educational Trust, 2013(12) TMI 745 (Delhi High Court) (iii). Alpine Electronics Asia Pvt. Ltd. Vs. DGIT, 341 ITR 247 (Del.) (iv). Dalmia (R) vs. CIT, 236 ITR 480 (SC) (v). CIT vs. Pawan Gupta, 318 ITR 322 (Del.) (vi). DCIT vs. M/s. Silver Line 2014(10) TMI 141 ITAT Delhi (vii). CIT vs. Rajeev Sharma, 336 ITR 247 (Del.) (viii). ITO vs. Smt Sukhini P. Modi, 295 ITR (AT) 169 (Ahmedabad Bench) (ix). UKT Software Technologies Pvt Ltd vs. ITO, 2013 (1) TM 1678- ITAT Delhi. (x). CIT vs. Mukesh Kumar Aggarwal, 345 ITR 29 ITA No. 1105 & C.O. No. 326/Del./2011 3 (xi). CIT vs. M/s. Parikalpana Estate Development (P) Ltd., 2012 (10) TMI 617 (xii). CIT vs. M/s. Ceban India Ltd., 347 ITR 583 (P&H) 3. The ld. DR, on the other hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessment proceedings. 15. For the aforementioned reasons, it is held that as far as the second ground is concerned, the Petitioner should succeed. In that view of the matter, the Court does not consider it necessary to examine the first ground of challenge. The impugned notice dated 22 February, 2013 issued to the Petitioner under Section 148 of the Act as well as the consequential order dated 20th January, 2014 disposing of its objections as well as the reassessment proceedings pursuant thereto are hereby quashed." Similar finding has been made by various courts in the decisions relied on by the ld. AR. 6. The case law relied on by the ld. DR in Madhya Bharat Energy Corporation (supra) is not applicable, as this decision has been reviewed by Hon'ble Delhi High Court in Revenue petition No. 441/2011 vide order dated 17th August, 2011. This fact has been noted by the Hon'ble High Court in the case of Pr. CIT Vs. Sri Jai Shiv Shankar Trader Pvt. Ltd. at para -9 which reads as under. outset drew the attention of this Court to an order passed by this Court on 17th August, 2011 in Review Petition No.441/2011 in ITA No.950/2008 (CUT v. Madhya Bharat Energy Corporation) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (supra) is not of any assistance to the Revenue as far as the issue in the present case is concerned. 10. Ms Aggarwal nevertheless urged that notwithstanding the above position, the decision of this Court in CIT v. Vision Inc. (2012) 73 DTR 201 (Del) would apply. The said judgment held that since on the facts of that case the Assessee had been properly served with the notice under Section 143(2) of the Act within the statutory time limit prescribed under the proviso thereto, the ITAT should not have set aside the re-assessment in toto. Ms Aggarwal placed reliance on Section 292BB of the Act and urged that the Assessee having not raised any objection about non service of the notice under Section 143(2) of the Act either at any time before the AO or prior to, or during the reassessment proceedings, the Assessee was precluded from raising such an objection in the subsequent of the proceedings. 11. Dr Rakesh Gupta for the Assessee on the other hand placed reliance on a large number of decisions of the High Courts apart from the decision of the Supreme Court in ACIT v. Hotel Blue Moon (supra). He submitted that the failure to issue a notice under Section 143(2) of the Act sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 1 April 2008. Section 292 BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the assessee, has been duly served upon him in time in accordance with the provisions of the Act. The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him; or (ii) not served upon him in time; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to Section 292 BB of the Act, however, carves out an exception to the effect that the Section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view of the Tribunal that there was a waiver of right of notice to be issued u/s 143(2) of the Act." 18. As already noticed, the decision of this Court in CIT v. Vision Inc. proceeded on a different set of facts. In that case, there was a clear finding of the Court that service of the notice had been effected on the Assessee under Section 143 (2) of the Act. As already further noticed, the legal position regarding Section 292BB has already been made explicit in the aforementioned decisions of the Allahabad High Court. That provision would apply insofar as failure of "service" of notice was concerned and not with regard to failure to "issue" notice. In other words, the failure of the AO, in reassessment proceedings, to issue notice under Section 143(2) of the Act, prior to finalising the re-assessment order, cannot be condoned by referring to Section 292BB of the Act. 19. The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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