TMI Blog2018 (6) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(2) had, in fact, been issued in this case. In such a situation, where a notice that is mandatorily required to be issued is found not to have been issued, Section 292BB of the Act has no manner of operation. Substantial questions of law are answered accordingly as follows: (1) If the time for issuance of the notice under Section 143(2) of the Act has expired or the time for completing the reassessment proceedings under Section 153(2) of the Act has run out, the failure to issue such notice under Section 143(2) of the Act would result in the entire proceedings, including any order of assessment, to be quashed. (2) Section 292BB of the Act does not dispense with the issuance of any notice that is mandated to be issued under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal, particularly, as the assessee participated in course of the reassessment, the objections of the assessee as to the reassessment were considered by the Assessing Officer and it was not pointed out by the assessee prior to the reassessment being completed that no notice under Section 143(2) of the Act had been issued to him in respect of the reassessment. In the alternative, the Revenue says that if a notice under Section 143(2) is deemed to be mandatory so that in the absence thereof the subsequent order of assessment (or reassessment) has to be annulled, the matter must be restored to the stage where a notice under Section 143(2) of the Act may be issued for completing the assessment or reassessment, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h It is evident that the dictum of the Supreme Court in Hotel Blue Moon is that a notice under Section 143(2) is mandatory if the return as filed is not accepted and an assessment order is to be made at variance with the return filed by the assessee. It is also evident that the issue is not limited to block assessment but would apply to every case where a notice under Section 143(2) of the Act is necessary. In the judgment and order of the Appellate Tribunal impugned herein dated May 14, 2015, the Tribunal noticed a judgment of this Court of April, 8, 2014 rendered in ITAT 149 of 2013 (Commissioner of Income Tax v. Humboldt Wedag India Pvt. Ltd.) where this Court had expressed an opinion that when an order of assessment was passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. ACIT) where the view taken was that the non-issuance of a notice under section 143(2) of the Act, will not make the reassessment nullity in law, which is validly initiated under section 148 of the Act . However, such judgment of the Madras High Court was noticed and discussed in a later judgment of the same Court reported at 2010 Taxman 78 (Sapthagiri Finance Investments v. ITO). It was held therein that the view taken in Areva T D India Ltd was no longer good law in view of the Supreme Court judgment in Hotel Blue Moon. The assessee has also relied on another unreported judgment of the Madras High Court of November 19, 2014 in Tax Case (Appeal) 766 of 2014 (N. Ahamed Ali v. ITO) where it was held that a notice under Section 143(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can proceedings be continued after the time limit set therefor by the statute. In the light of the above discussion, particularly taking into consideration the law laid down by the Supreme Court in Hotel Blue Moon, it is inescapable that the issuance of a notice under Section 143(2) of the Act is mandatory if the Assessing Officer seeks not to accept any part of the return as furnished by the assessee or make an assessment order contrary thereto and, even in course of reassessment proceedings, such notice cannot be dispensed with. One of the arguments put forth on behalf of the Revenue is that in course of reassessment proceedings once a notice is issued under Section 148 of the Act, the assessee is made aware of what part of the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection 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 section shall apply where the assessee had raised such objection before the completion of such assessment or reassessment. Even if the provision does not carry a non-obstante clause, since Section 292BB is a provision of general application, it would be applicable in all situations; but only in so far as it proclaims to operate. Section 292BB of the Act, read in the context of several provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
