TMI Blog2019 (12) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(2) of the Act was issued within the prescribed time. Thus in absence of contrary evidences, we are not convinced with the finding of the authorities below. Indeed, it (acknowledgment issued by the postal department) is a vague and inchoate document. Hence, no reliance can be placed on the same. Accordingly, we hold that the assessment framed under section 143(3) of the Act without the issuance/serving of notice under section 143(2) of the Act within the time is not sustainable. Hence the ground of appeal of the assessee is allowed. - ITA No. 280/Ahd/2018 - - - Dated:- 6-12-2019 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms. MADHUMITA ROY, JUDICIAL MEMBER For the Appellant : Shri Anil Kshtriya, AR For the Respondent : Shri Lalit Jain, Sr.DR ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals) Ahmedabad-5, [CIT(A) in short] vide appeal no. CIT(A)- 5/DCIT Cir. 5(2)/ 635/ 2016-17 dated 11/12/2017 arising in the assessment order passed under s. 143(3) of the Income Tax Act, 1961(hereinafter referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹1,07,46,614 which was processed under section 143(1) of the Act. Subsequently the case of the assessee was selected under scrutiny and accordingly the notice under section 143(2) was issued/ served upon the assessee. 4.1. The assessee before the learned CIT (A) submitted that the last date for the service of notice under section 143(2) of the Act upon the assessee was 30 September 2014 whereas the notice has been issued dated 4th of September 2015. Accordingly the assessee claimed that the notice issued under section 143(2) of the Act dated 4 September 2015 is barred by time which cannot also be rectified under the provisions of section 292BB of the Act. The assessee in support of its contention relied on several judgments before the learned CIT (A). 4.2. The learned CIT (A) called for the remand report from the AO vide letter dated 1st of June 2017 whether the statutory notice under section 143(2) of the Act was issued within the prescribed time. The AO vide letter dated 9th of June 2017 submitted that the 1st notice under section 143(2) of the Act was issued by the erstwhile ITO Ward 7(3) on 5 September 2014 which was duly served upon the assessee. Subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Dak', by the concerned office. (g) In nut-shell, the alleged postal slip is concocted and forged one to create a fabricated evidence to support the case of the department. 3(iii) In regard to the A. O 's comments that the jurisdiction over the case was transferred to his office on 18/7/2015 and subsequent notices were issued on different dates are irrelevant, for the simple reason that the appellant has challenged the issuance and service of alleged notice u/s 143(2) of the Act dated 5/9/2014. Without prejudice to the above, it is stated that in the middle of second page of A.O's report, he has admittedly stated that the A.R. of the appellant attended the office from time to time and the case was discussed and submission was placed on record . Besides the A.O. has passed the impugned assessment order u/s 143(3) of the Act (and not exparte), which in itself shows that the A.O's remark on non-compliance of the appellant is vague. The conduct of the appellant in participating in assessment-proceedings, would not be sufficient to confer the justification on the A. O. without valid service of notice. 3(iv) Lastly, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC). It has been this law, which has been followed by the jurisdictional High Court in the case of CIT Vs. Sukhini P. Modi [2014] 367ITR 682 (Guj.). (2) From the above, it may kindly be appreciated that when the procedure prescribed of issuance of notice u/s 143(2) of the Act and service thereof within the limitation laid down under the statue has not been followed at all in the appellant's case. In absence of fulfillment of mandatory requirement of issuance of notice u/s 143(2) and valid service thereof in the case on hand, invalidates the whole proceedings and the impugned assessment order needs to be quashed for the reason that such defect / deficiencies has been jurisdictional and could not be cured by recourse of section 292B of the Act. (3) Needless to state that, as per A.O's remand report the first notice u/s 143(2) / 142(1) of the Act was issued by the A.O. on 4/9/2015 fixing hearing on 30/9/2015. This is a time barred notice, since the limitation of service of notice as per proviso to subsection( 2) of section 143 is to be within the period of six months from the end of the financial year in which the return is furnished. It is undisputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the prescribed time upon the assessee before acquiring the jurisdiction for the assessment under section 143(3) of the Act. In holding so we find support and guidance from the judgment of Hon ble Supreme Court in the case of ACIT Vs. Hotel Blue Moon reported in 321 ITR 362 wherein it was held as under: 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 a notice under section 143(2) cannot be dispensed with. 7.1. It is also pertinent to note that the revenue can take the shelter of the provisions of section 292 BB of the Act in a situation where the statutory notice has been issued upon the assessee within the prescribed time but the same was not served in the proper manner and the assessee has not raised any objection on the service of such notice during the assessment proceedings. In this regard we important to refer the provisions of section 143(2) and 292 BB of the Act which are extracted as under. Proviso to Section 143(2) of the Act is extracted for ready reference which reads thus: Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other communication under this Act (hereafter in this section referred to as communication ) may be made by delivering or transmitting a copy thereof, to the person therein named,- (a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or (d) by any other means of transmission of documents as provided by rules made by the Board in this behalf. (2) The Board may make rules60 providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions electronic mail and electronic mail message shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000)61.] 7.5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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