TMI Blog2021 (5) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... valid if there was requisite participation on part of the assessee. It is, however, to be noted that the section does not save complete absence of notice. For section 292BB to apply, the notice must have emanated from the Department. It is only the infirmities in the manner of service of notice that section seeks to cure. The section is not intended to cure complete absence of notice itself. Since the facts on record are clear that no notice under section 143(2) of the Act was however issued by Department, the finding rendered by the High Court and the Tribunal and the conclusion arrived at were correct. As held by Kerala High Court in the case of Padinjarkara Agencies Pvt. Ltd., Vs. CIT [ 2017 (8) TMI 724 - KERALA HIGH COURT] after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court for not deciding the issue relating to the issue of notice under section 143(2) of the Income Tax Act, 1961 (hereinafter called the Act ), within time limit. The Hon ble High Court on hearing the appeal of the assessee in ITA No.455/16 vide judgment dated 27.01.2021 remitted the issue to the Tribunal to adjudicate the issue whether the notice issued under section 143(2) of the Act to the assessee barring time limitation is contrary to the provisions of the Act. Being so, these 4 C.Os came up for adjudication before this Tribunal once again. Learned AR drew our attention to the chart showing the important dates for the purpose of adjudicating the validity of issue of notice under section 143(2) of the Act: SI.No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the assessee as against the reasons recorded by the learned assessing officer. 21/02/2012 21/02/2012 09/02/2012 21/02/2012 [viii]. Date on which the mandatory statutory notice issued under section 143[2] of the Act by the learned Assessing Officer. 28/02/2013 28/02/2013 28/02/2013 28/02/2013 3. It was submitted that the notice dated 28.02.2013 issued to all these assessees is barred by time as it was not issued within the stipulated time as provided in the provision to section 143(2) of the Act. Further, he submitted that the assessee has filed the letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 21.12.2011 before AO on 23.12.2011 stating that the original return filed on 27.03.2009 of the Act be treated as return filed in response to notice issued under section 148 of the Act. As such, time limit to issue notice under section 143(2) of the Act starts from 23.12.2011. Time limit under section 143(2) of the Act for the Assessment Year 2007-08 as per the provision to clause ii to section 143(2) of the Act is as follows: provided that no notice under clause ii shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. 5. As such, the tewelve months starts from 31.12.2011 and lapses on 31.12.2012. In the present case, as seen from the copy of notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessment order is passed based on the invalid notice, which does not survive. Notice is the foundation. Assessment order built upon such defective notice would certainly fall to the ground. 6. The contention of AR here is that now it is well settled in the judgment in the case of ACIT Vs. Hotel Bluemoon 321 ITR 362, Alacriti Housing Ltd., Vs. CIT 341 ITR 264, Indus Towers Ltd., Vs. DCIT 82 taxmann.com 430, Nittur Vasanth Kumar Mahesh Vs. ACIT 265 taxmann.com 277, Bihar Police Building Construction Corporation [P] Ltd., Vs. PCIT 108 taxmann.com 48, PCIT Vs. Silver Line 65 taxmann.com 137 that delay in issuing a notice under section 143(2) of the Act would be fatal and assessment is bad in law. 6.1 In the case of CIT Vs. Laxm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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