TMI Blog2021 (6) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinabove. The Department has not been able to refute the decisions in ACIT vs. Hotel Blue Moon (supra) and CIT vs. Laxman Das Khandelwal (supra), both rendered by the Hon'ble Supreme Court. No merit in the grievance sought to be raised by the Department, the same is hereby rejected - ITA No.629/LKW/2019, C.O. No.04/LKW/2020 (In ITA No.629/LKW/2019) - - - Dated:- 17-6-2021 - Shri. A. D. Jain, Vice President And Shri T. S. Kapoor, Accountant Member For the Department : Smt. Sheela Chopra, CIT (DR) For the Assessee : Shri Shubham Rastogi, C.A. ORDER PER A.D. JAIN, V.P.: This is Revenue s appeal against the order of the ld. CIT(A)-III, Lucknow dated 27/1/2017, for the assessment year 2009-10. The assessee has filed cross objection. ITA No.629/LKW/2019: 2. This appeal has been filed by the Department against the order passed by the ld. CIT(A), whereby the ld. CIT(A) has quashed the assessment order dated 30/12/2016 passed under section 143 of the Income Tax Act, 1961 read with 147 of the Act, observing therein that it is a fact that no notice under section 143(2) of the Act was issued and served on the assessee; and that therefore, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Assessing Officer to the assessee. The question is whether in such a circumstance, the ld. CIT(A) is correct in annulling the re-assessment order dated 30/12/2016. 6. In this regard, the observations of the ld. CIT(A) are as follows: 12. The preliminary issue to be decided is, as to whether the assessment is valid in the absence of issue and service of notice u/s. 143(2) of the Act. The Hon'ble Mumbai High Court in the case of ACIT v. Geno Pharmaceuticals Ltd., [32 taxmann.com 162] held as under: - Apart from that, it is an admitted position that no notice under Section 143(2) had been issued while making assessment under Section 143(3) read with Section 147. The Apex Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 has held that the Tribunal has discretion to allow or not to allow a new ground to be raised. But in a case where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction under section 143 is founded on the issuance of a notice under section 143(2), the Assessing Officer could have assumed jurisdiction only after issuing a notice under section 143(2). Even the participation of the assessee would not provide the benefit under section 292BB to the revenue. The requirement that a notice be issued is mandatory and the Assessing Officer has no other option but to issue the notice before commencing the jurisdiction. 13. Now, it is in this background that it would be necessary to consider the provisions of Section 292BB of the Act. Section 292 BB provides as follows: - 292BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment. It shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objeo1p in any proceeding or inquiry under this Act that the notice was- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BB needs to be applied only on those cases in which notice has emanated from the department. It is only the infirmities in the manner of the service of the notice that the section 292BB seeks to cure. It is not intended to cure complete absence of the notice. 17. In view of the above, I find that, where the Assessing Officer fails to issue a notice as spelt out in the proviso to clause (ii) of Section 143 (2) of the Act, the assumption of, jurisdiction under Section 143 (3) of the Act would be invalid. This defect in regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction under, Section 292 BB of the Act. The fiction in Section 292 BB of the Act overcomes a procedural defect in regard to the nonservice of a notice on the assessee, and obviates a challenge that the notice was either not served or that it was not served in time or that it was served in an improper manner, where the assessee has appeared in a proceeding or cooperated in an enquiry without raising an objection. Section 292 BB of the Act cannot come to the aid in a situation where the issuance of a notice itself was not made, in which event the question of whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation, hence the subsequent assessment is also invalid. (2) The Ld. C.I.T. (A) erred on facts and in law in not deciding the issue that notice dated 31.03.2016 issued u/s 148 of I.T. Act by ACIT, R-1, Lko., has been issued at wrong address and also served by ITI through affixture at wrong address, hence the notice dated 31.03.2016 was bad in the eye of Law. (3) That the address of the Assessee Firm as per Income Tax Record is Wave Enterprises, A-104, Indira Nagar, Lucknow, PAN - AAAFW8536D and notice dated 21.12.2016 u/s 148 and other notices were also issued at this address. WITHOUT PREJUDICE TO ABOVE (4) The Ld. C.I.T. (A) erred on facts and in law in not deciding the issue that for a valid affixture of notice an independent witness is required and the same has not been followed in the present case as the so called notice as stated in the body of order has been affixed by IT! at wrong address in the presence of notice server only. Thus, it is an invalid affixture as per law and subsequent proceedings based on it are also invalid. WITHOUT PREJUDICE TO ABOVE (5) That Ld. C.I.T. (A) erred on facts and in law in not deciding the issue that reasons recorded u/s 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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