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TMI Blog2021 (6) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, vide order dated 30/12/2016, for assessment year 2009-10 became null and void. 3. The ld. D.R., challenging the order under appeal, has contended that the Ld. CIT(A) erred in quashing the assessment, as non-issuance of notice u/s 143(2) is only a procedural irregularity on the basis of which assessment cannot be annulled, as discussed in 'M/s Areva T & D India Ltd. Vs. ACIT (Chennai)' and 'Jai Prakash Singh', 1996 AIR 1303, 1996 SCC (3) 525; that the Ld. CIT(A) erred in quashing the assessment without considering the fact that the basic requirement of section 143(2) has been fulfilled in this case, as in the notice issued u/s 142(1) dated 22.12.2016, the assessee was clearly asked to provide details of all related documents in support of its income tax return; that the Ld. CIT(A) failed to appreciate that no specific format has been prescribed for notice u/s 143(2) in the l.T. Act and I.T. Rules and as per the I.T. Act, only the basic requirement of providing an opportunity to produce any evidence, on which the assessee relies in support of the return, is to be fulfilled; and that the Ld. CIT(A) failed to appreciate that as per section 292BB of the Act, no asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 143(2) was mandatory. The ITAT has taken into consideration the relevant provisions and has also taken into consideration the judgment of the Apex Court and relying on the said judgments, the ITAT has held that notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under Section 148. Under these circumstances, no case is made out for interfering with the Tax Appeals No.7712012 and 7812012 since no substantial question of law is raised in both the appeals." The Kerala High Court in the case of Travancore Diagnostics (P.) Ltd., ACIT [74 taxmann.com 239] held as under:- "It is virtually admitted by the Revenue that no notice under section 143(2) had been issued. It is settled position of law that omission on the part of the Assessing Officer under section 143(2) cannot be a procedural irregularity and that the same is, not curable and that therefore, the requirement of notice under section 143(2) cannot be dispensed with. This emphatic statement of law, in the absence of issuance of a notice under section 143(2) by the revenue, would, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted by the Finance Act, 2008 with effect from 1 April 2008. Section 292BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the assessee, has been duly served upon him in time in accordance with the provisions of the Act. The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him; or (ii) not served upon him in time; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to Section 292 BB of the Act, however, carves out an exception to the effect that the Section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued and served on the appellant. Therefore, in the absence of issue and service of notice u/s. 143(2) of the Act the reassessment made by the Assessing Officer u/s. 143 r.w.s. 147 of the Act dated 30.12.2016 for the Assessment Year 2009-10 became null and void. Accordingly the Assessment Order passed u/s. 143 r.ws. 147 of the Act, is quashed as bad in law." 7. In the case of 'CIT vs. Laxman Das Khandelwal' 108 Taxmann.com 183 (SC), it has, inter alia, been held by the Hon'ble Supreme Court that a complete absence of notice under section 143(2) of the Act does not get cured even by section 292BB of the Act; that for section 292BB of the Act to apply, a notice under section 143(2) must have emanated from the Department and it is only infirmities in manner of service of notice that section 292BB of the Act seeks to cur-e and it is not intended to cure complete absence of notice itself. It was held that the law on the point as regards applicability of the requirement of notice under section 143(2) of the Act is quite clear from the decision in 'ACIT vs. Hotel Blue Moon' [2010] 321 ITR 362(SC), wherein it was held that notice under section 143(2) of the Act would be mandatory fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so submitted objections on reasons to believe but the Ld. A.O. without disposing of the objections proceeded to complete the assessment. (7) The Ld. C.I.T.(A) erred on facts and in law in not deciding the issue regarding addition of Rs. 2,60,50,000/- u/s 68 of I. T. Act without appreciating that the assessee has discharged its onus by submitting the evidences w. r. t. identity of the Loaner, creditworthiness and genuineness of the transaction and the evidences submitted has not been doubted by the Ld.A.0. (8) That the Ld. C. I. T (A) did not appreciated that the assessee is not required to prove the source of source of Loaner as Loaner company M/s Sanyam Vyapar Pvt. Limited is an independent assessee assessed to tax vide PAN - AAKCS6802R and if any addition is required the same has to be made in the hand of loaner only. Further, Ld A.O did not issued summons to M/s Sanyam Vyapar Pvt. Ltd., inspite of our repeated requests. (9) The Ld. C.I.T. (A) did not appreciate the fact on record that assessee firm or its partner have no substantial interest in Loaner Company 'M/s Sanyam Vyapar Pvt. Ltd.'. Further, Ld. A 0 had not confronted any adverse material as relied by Ld A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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