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TMI Blog2018 (6) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... ire reassessment proceedings on the assessee's assertion that no notice under Section 143(2) of the Act was issued by the Assessing Officer before undertaking the reassessment. The judgment of the Appellate Tribunal is founded primarily on the ratio decidendi in the Supreme Court judgment reported at 321 ITR 362 (Assistant Commissioner of Income Tax v. Hotel Blue Moon). The Revenue is in appeal and says that in view of Section 292BB of the Act, the ground could not have been urged by the assessee before 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason, why the authorities should issue notice under section 143(2). However, if an assessment is to be completed under section 143(3) read with section 158 BC, notice under section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with ..." 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otel Bluemoon, reported in (2010) 321 ITR 362 (SC) and the judgment in the case of CIT -vs- C. Palaniyappan, reported in (2006) 284 ITR 257 (Madras), opined that the re-assessment was without jurisdiction and was, therefore, quashed. It is against this order that the revenue has come up. "We find no infirmity in the order under challenge. The appeal is as such dismissed." The Revenue has sought to rely on a Madras High Court judgment reported at 294 ITR 233 (Areva T & D India Ltd. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Section 153 (2) of the Act directs an order of assessment, reassessment or recomputation to be made under Section 147 of the Act within a particular period. The relevant periods, both in terms of the proviso to Section 143(2) of the Act and in terms of Section 153 thereof, have expired. As noticed by the Supreme Court in Hotel Blue Moon and is quoted above, the time is of some significance and notices can no longer be issued after the expiry of the period mandated therefor nor 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 143(2) thereof. Apropos the second question framed above, it is necessary that Section 292BB of the Act be noticed in its entirety: "292BB Notice deemed to be valid in certain circumstances - Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be issued is found not to have been issued, Section 292BB of the Act has no manner of operation. The two 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 Act, but merely cures the defect of service of such notice if an objection in such regard is not taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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