TMI Blog2015 (2) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 143(2) and period within which notice under section 143(2) may be issued is still available, the assessing authority can proceed further by issuing a fresh notice and thereafter can pass fresh order, but, if in the meantime, period within which notice under section 143(2) could be issued, has already lapsed, no such fresh exercise is permissible. Therefore, we answer question no. 2 accordingly. We dispose of this appeal by directing the Assessing Officer that it shall first examine whether the period within which notice under section 143(2) could have been issued, was available to the Assessing Officer on the date when Tribunal passed impugned order. It can proceed further only if such period was available and not ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioner of Income Tax, Investigating Circle, Allahabad passed an order of assessment under section 143(3)/148 on 30.3.1995 making various additions computing total income of ₹ 17,11,890/-. 5. The assessee preferred an appeal which was partly allowed by Commissioner of Income Tax (Appeal) (hereinafter referred to as CIT(A) vide order dated 30.5.1996 reducing additions substantially i.e. ₹ 33,000/- on account of income from business transaction and ₹ 60,000/- on account of investment on such transaction. 6. The assessee preferred further appeal before Income Tax Appellate Tribunal, Allahabad vide I.T.A. No. 1432 (Alld)/1996, which had been partly allowed vide judgement and order dated 3.5.2006, answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limit permits then he can issue notice u/s 143(2) and frame the assessment u/s 143(3), after it being cancelled by appellate authority. (5) Where assessment is framed u/s 143(3) after issuance/service of notice u/s 142(1) but without issuance of notice u/s 143(2) then such an assessment will carry only an irregularity which is liable to be cured u/s 292B as there is only a mistake in mentioning the section in the order. An assessment after service of notice u/s 142(1) can be passed under section 144 only. There is no lack of jurisdiction. Alternative the assessment can be set aside to cure the defect of mentioning the wrong section in the order. (6) Where assessment is framed u/s 143 (3), after issuance of notice u/s 142(1) but with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of notice under section 143(2) is not a nullity, therefore, it will not be cancelled and only set aside something, which, we do not find of having any legal consequence. In the circumstances, substantial questions of law which arisen for our consideration are as under:- (1) Whether a notice under section 143(2) of Income Tax Act, 1961 is jurisdictional issue going to the root of validity of assessment made under section 143(3) if made without notice? (2) Whether non issuance of notice under section 143(2) is procedural irregularity and incurable and whether such notice can be dispensed with? 8. Sri Shambhu Chopra appearing on behalf of Revenue has placed reliance on following judgements in Anowar Hussain Vs. Ajoy Kumar, AIR1965 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond aspect, in Harsingar Gutkha (P) Ltd. Vs. Commissioner of Income Tax, (2012) 20 taxmann.com 713 (All). This court has said as under:- A perusal of the provisions of Section 143 (2) of the Act shows that the service of the notice on the assessee within the period provided under the proviso is mandatory. In the absence of the notice being served within the stipulated period under section 143 (2) of the Act, the assessment proceeding comes to an end and is deemed to have become final. Reliance is being placed on the decisions in the case of CIT v. M. Chellappan [2006] 281 ITR 444 (Mad), Vipan Khanna v. CIT [2002] 255 ITR 220 (P H), CIT v. C. Palaniappan [2006] 284 ITR 257 (Mad), CIT v. Bhan Textiles P. Ltd. [2006] 287 ITR 370 (Delhi), C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return: [Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.] 14. We have no manner of doubt that if an earlier order of assessment under section 143(3) is found illegal for want of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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