TMI Blog2020 (3) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the prescribed time. The Ld. DR has also not brought anything on record contrary to the arguments advanced by the Ld. AR for the assessee. Thus in the absence of the statutory notice, the assessment framed under section 143(3)/147 of the Act is not sustainable. Hence the ground raised by the assessee is allowed. - ITA No.810/AHD/2018 (Asstt. Year: 2008-2009) - - - Dated:- 20-1-2020 - SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER Assessee by: Shri Hem Chhajed, A.R Revenue by: Shri N.K. Goel, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax(Appeals)-6, Ahmedabad dated 26/02/2018 ( in short Ld.CIT(A) ) arising in the matter of assessment order passed under s.143(3) r.w.s 147 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) dt.14/03/2016 relevant to the Assessment Year 2008- 2009. The assessee has raised the following grounds of appeal. 1. The order passed by the Ld.CIT(A) is against the law, equity and justice. 2. The Ld. CIT(A) has erred in law and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.1 The Ld. CIT-A accordingly disregarded the argument raised by the assessee on validity of the assessment order framed by the AO without issuing mandatory notice under section 143(2) of the Act and upheld the assessment proceedings. 6. Aggrieved by the order of the Ld. CIT-A, the assessee is in appeal before us. 7. The Ld. AR for the assessee before us filed a paper book running from pages 1 to 89 and pointed out that the assessment order was framed under section 143(3) read with section 147 of the Act without issuing notice under section 143(2) of the Act. The Ld. AR for the assessee also submits that the return of income has been filed on dated 19-06-2015 in response to the notice under section 148 of the Act which is available on page nos. 1 to 3 of the paper book. 8. On the other hand the Ld. DR before us submitted that the assessee did not raise any objection on the issuance of notice under section 143(2) of the Act during the assessment proceedings. Therefore the assessee is precluded from raising such objection during the appellate proceedings in pursuance to the provisions of section 292BB of the Act. The Ld. DR vehemently supported the order of the authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that laid down by section 144B, has to be followed From the above judgment, there remains no ambiguity that the procedural provisions for making the assessment under section 143(3) of the Act has to be followed. Therefore, it is mandatory upon the Revenue to ensure the service of notice under section 143(2) of the Act even in the assessment framed under section 147 of the Act. 9.3 We also find support and guidance from the order of Special Bench of Delhi in the case of Raj Kumar Chawla v/s ITO reported in 145 Taxman 12 wherein it was held as under: Section 148 does not provide any methodology for computing the income on reassessment or assessment. On the contrary, it creates a legal fiction that such return shall be treated as one made under section 139. By the creation of such legal fiction all the procedures prescribed in and subsequent to section 139 automatically apply in toto. It is a settled principle that a legal fiction has to be taken to its logical conclusion and, therefore, what is valid for a return under section 139 will be valid with equal force to a return filed under section 148. Therefore, the proviso will apply to a return filed in response to not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under section 143 or section 144. Accordingly, we hold that any assessment made for the first time by resort to section 147 will also be a regular assessment for the purpose of invoking section 217 of the Act. With great respect, we dissent from the view expressed in certain decisions referred to earlier in this judgment which take a contrary view. (p. 452) 10. Thus in view of the above we conclude that the AO was under the obligation to issue a notice under section 143(2) of the Act for making the assessment or reassessment as the case may be. But the AO has not done so. Accordingly, the order framed under section 143(3) read with section 147 of the Act becomes invalid. 11. We further note that the provisions of section 292BB of the Act deals with the situation where notice is not served or not served on time or served in a improper manner viz a viz the assessee does not raise objection before the completion of the assessment. As such, the provision of section 292BB of the Act does not deal about the issuance of notice. In the present case, the issue is whether the assessment framed under section 147/143(3) of the Act is valid without the issuance of the mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the fact that it is an admitted position that no such notice had been issued after the return of income was filed by the assessee. After the filing of the return of income, unless a notice under section 143(2) of the Act is issued to the assessee, he would have no means of knowing as to whether or not the Assessing Officer has accepted the return of income as filed by him. As held by the Supreme Court, omission to issue a notice under section 143(2) is not a procedural irregularity and is not curable. It is, therefore, mandatory to issue notice under section 143(2) of the Act. Section 292BB provides for a deeming provision that any notice under any provision of the Act, which is required to be served upon the assessee, has been duly served upon him in time, in accordance with the provisions of the Act. This section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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