TMI Blog2021 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... eassessment proceedings void ab initio and thus liable to be quashed. Hence the assessment so framed without issuance of notice u/s 143(2) of the Act is hereby quashed being contrary to law - Decided in favour of assessee. - ITA No.823/Ind/2018 (Assessment Year 2010-11) - - - Dated:- 9-8-2021 - HON BLE RAJPAL YADAV, VICE PRESIDENT AND HON BLE MANISH BORAD, ACCOUNTANT MEMBER Assessee by Shri C.P. Rawka, Venus Rawka, ARs Revenue by Shri Harshit Bari, Sr. DR ORDER PER MANISH BORAD, A.M The above captioned appeal filed at the instance of the Assessee for Assessment Year 2010-11 is directed against the orders of Ld. Commissioner of Income Tax(Appeals)-II (in short Ld. CIT], Indore dated 21.08.2018 which are arising out of the order u/s 143(3) of the Income Tax Act 1961(In short the Act ) dated 08.11.2017 framed by ITO-4(1), Indore. 2. Brief facts of the case as culled out from the records are that the assessee is individual running proprietorship concern of M/s Sainath Iron Scrap Traders. Return of income for A.Y. 2010-11 filed on 15.10.2010 declaring total income of ₹ 5,72,180/-. This return was processed u/s 143(1) o the Act, subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s 143(2) for the first time and that section 292BB of the Act is a rule of evidence and would not apply so far as failure of service of notice was concerned and that section 292BB is prospective and applicable only for A.Y. 2008-09 onwards. Reliance was placed on the decision of Hon'ble High Court of Delhi in the case of Pr. CIT vs. Silver Line in ITA No.578 to 582/2015. 8. As regards the proposition that the issuance of notice u/s 143(2) of the Act is mandatory before commencing the reassessment proceedings and if notice u/s 143(2) of the Act is not issued then the entire reassessment proceedings can be held invalid and void ab initio, reliance was placed on following judgments: 1. CIT vs. Laxman Das Khandelwal in Civil Appeal No.6261- 6262 of 2019 dated 13.08.2019 (SC) 2. Pr. CIT vs. Kamla Devi Sharma in ITANo.197/2018 dated 10.07.2018(Rajasthan HC) 3. Pr. CIT vs. Oberoi Hotels Pvt. Ltd. in ITANo.152 of 2015 dated 22.6.2018(Calcutta HC) 4. ITO vs. Shri Vinod Kumar Jain in ITANo.318/Ind/2017 dated 11.03.2019 (I.T.A.T.,Indore) 5. ACIT Khandwa vs. M/s. Sukhamani Cotton Industries in ITANo.222/Ind/2017 dated 21.12.2018 9. Per contra, Ld. Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we admit additional legal grounds raised by the assessee and proceed to adjudicate the same. In this additional ground issue raised by the assessee is that reassessment proceedings are liable to be quashed, on the specific ground of non-issuance of statutory notice u/s 143(2) of the Act. It is an admitted fact before us that for the instant year under appeal for the purpose of reassessment Ld. AO only issued notice u/s 148 of the Act but failed to issue statutory notice u/s 143(2) of the Act. 14. Now whether the issue of notice u/s 143(2) of the Act is mandatory for carrying out reassessment proceedings, we find that Hon'ble Apex Court in a recent judgment in the case of CIT vs. Laxman Das Khandelwal in Civil Appeal no.6261-6262 of 2019 dated 13.08.2019 adjudicating similar issue laying down the ratio that the issuance of notice u/s 143(2) of the Act being a prerequisite and in the absence of such notices the entire proceeding would be invalid, observed as follows:- 5. At the outset, it must be stated that out of two questions of law that arose for consideration in in Hotel Blue Moon s case2 the first question was whether notice under Section 143(2) would be mandatory f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled under Section 158- BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143. 6. The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to the following effect:- 292BB. Notice deemed to be valid in certain circumstances. Where an assessee has appeared in any proceeding or cooperated 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 objection 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 manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 7. A closer look at Section 292BB shows that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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