TMI Blog2014 (9) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... als filed by the Revenue pertaining to same assessee are directed against different orders of the Commissioner of Income Tax (Appeals) VI, Chennai, both dated 12.11.2013 relevant to the assessment years 2008-09 and 2009-10. 2. Brief facts of the case are that the assessee is an individual, filed return declaring total income of ₹.5,56,572/-. The return filed by the assessee was processed under section 143(1) of the Income Tax Act. Thereafter, based on AIR information, notice under section 147 of the Act was issued. On the request of the assessee, the Assessing Officer supplied reasons for reopening of assessment. In the assessment order, the Assessing Officer has observed that in response to the notice, except filing a copy of the return already filed, the assessee has not furnished any particulars/documents whatsoever. In these circumstances, assessment was completed ex-parte by assessing the income of the assessee at ₹.1,86,34,729/- for the assessment year 2008-09 taking into account the materials available on record. 3. Aggrieved, the assessee carried the matter in appeal before the ld. CIT(Appeals). The main grievance of the assessee before the ld. CIT(Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer. 2. The required information are submitted as per the assessment record for the A.Y. 2008-09 and 2009-10. 1. The date of issue of notice u/s 143(2) or 142(1): The date of issue of notice u/s 143(2) or 142(1) are not available on assessment record for the A.Y. 2008-09 and 2009-10. 2. The date of service of notice u/s 143(2) or 142(1): The date of service of notice u/s 143(2) or 142(1) are not available on assessment record for the A.Y. 2008-09 and 2009-10. 3. The relevant copies of evidence for the issue and service of notices u/s 143(2) or 142(1): The relevant copies of the notice u/s 143(2) or 142(1) are not available on record. 3. It is submitted that the above information are furnished as per the assessment record for the A. Y 2008-09 and 2009-10 and it was categorically submitted in the remand report that the assessee's ground no.2 and 3 are not maintainable. Besides to the above facts that it is submitted that assessee's ground No.2 and 3 are not maintainable in the context and purpose of section 292BB since the assessee has co-operate in reassessment proceedings by filing the return in response to the notice u/s 148. The relevant assessment re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the procedure laid down under section 143(2) of the Act, which is mandatory. In the case of ACIT v. Hotel Blue Moon (supra), the Hon ble Supreme Court has held that if an assessment is to be completed under section 143(3) r.w.s. 158BC, notice under section 143(2) of the Act should be issued within one year of filing of the block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be mere procedural irregularity, the same is not curable. By observing above, the ld. CIT(Appeals) passed a detailed order by holding that reassessment was not valid. The relevant portion of the order is extracted as under: 6.5 I have considered the submissions of the Assessing Officer and also the submission of the assessee carefully on this issue. I have also perused the case records forwarded by the Assessing Officer. I have also gone through the decisions relied upon by the A.R. of the appellant. The Assessing Officer did not raise any query to the assessee on the issues/information in his possession except communication of the reasons vide his letter dated 13.06.2011. No statutory notice either u/s 143(2) or section 142(1) was issued to initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not aimed at curing the defect of non-issuance of notice within the statutory period. In the instant case, no notice u/s 143(2) was issued. Hence, the ratio of the decision rendered by Hon'ble Gujarat High Court in the case of K.M. Ravji (supra) are squarely applicable to the facts of the case on the question of the applicability of the Sec.292BB of the IT Act. The issuance of the statutory notice u/s 143(2) within the limitation period is the prerequisite condition for valid assessment to be made even under the provisions of Sec.292BB of the IT Act. Therefore, on the facts and circumstances of the case and the legal position, I am of the considered view that the provisions of Section 292BB are not applicable to the appellant. The ratios of the various decisions relied upon by the AO in the remand proceedings are also not applicable to the assessee as the decision rendered by the Jurisdictional High Court in the case of M/s. Sapthagiri Finance Investment (supra) following the decision of the Apex Court in the case of M/s. Hotel Blue Moon (supra) is law of the land and binding upon the appellate authorities. 6.6 Hence, respectfully following the ratio of the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply given by the Assessing Officer. The Department has not brought anything on record before us to show that the findings given by the ld. CIT(Appeals) is not correct. On perusal of the reply given by the Assessing Officer, which is reproduced hereinabove, we hold that the findings given by the ld. CIT(Appeals) that no notice under section 143(2) or 142(1) of the Act were issued to the assessee is correct and no interference is called for. 11. In so far as the decision in the case of Sapthagiri Finance Investments v. ITO (supra), the Hon ble Jurisdictional High Court has considered the issue of notice under section 143(2) of the Act and also by following the decision of the Hon ble Supreme Court in the case of ACIT v. Hotel Blue Moon (supra), held as under: 12. As far as the contention of the Revenue that failure to issue notice under Section 143(2) of the Act is only curable defect is concerned, the decision relied on by the assessee reported in 321 ITR 362 ASST. CIT v. HOTEL BLUE MOON also covers the said issue. It is no doubt true that the said decision dealt with the assessment done under Chapter XIV relating to block assessment. The assessee therein raised a contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent practicable, in view of expression so far as may be in Section 153BC(b), the Apex Court pointed out that the expression so far as may be has always been construed to mean that those provisions may be generally followed to the extent possible. Rejecting the contention of the Revenue that it is not expedient to follow the provisions under Sections 142 and 143 (2) and (3) strictly for the purpose of block assessment, the Apex Court held that in completing the assessment, when the officer repudiates the return filed under Section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142 and 143 (2) and (3) of the Act. 13. As far as the present case is concerned, the provisions of Section 148 also uses the expression so far as may be apply accordingly as if such return were a return required to be furnished under Section 139 . Thus, understanding this provisions in the background of the decision of the Apex Court, on the facts available, we are of the view that in completing the assessment under Section 148 of the Act, compliance of the procedure laid down under Sections 142 and 143(2) is mandatory. On the admitted fact that beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(1)(a) : the officer has to complete the assessment under section 143(3) only. If an assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and is not curable. Therefore, the requirement of notice under section 143(2) cannot be dispensed with. 13. In view of the decisions of the Hon ble Supreme Court in the case of ACIT v. Hotel Blue Moon (supra) and the Hon ble Jurisdictional High Court in the case of Sapthagiri Finance Investments (supra), the issuance of notice under section 143(2) of the Act is mandatory. In the present case, there is nothing available on record to show that the Assessing Officer had issued notice under section 143(2) or 142(1) of the Act. Therefore, the ld. CIT(Appeals) cancelled the reassessment as not valid. We, therefore, by following the decisions of the Hon ble Supreme Court as well as the Hon ble Jurisdictional High Court, hold that the ld. CIT(Appeals) rightly cancelled the reopening as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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