TMI Blog2022 (1) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... ituations of irregularities wherein the notice has been served to the assessee in time and in accordance with the provisions of this Act. The present case assessee has not received the notice u/s. 143(2) in time and therefore the argument raised by revenue cannot be appreciated. In case of Hotel Blue Moon reported in (2010) 321 ITR 362 [ 2010 (2) TMI 1 - SUPREME COURT ] wherein Hon ble Supreme Court held that an omission on part of the Assessing Officer u/s. 143(2) cannot be procedural irregularity and the same is not curable. As the notice was not issued within the period of limitation, the empathetic statement of law in the absence of issuance of notice u/s. 143(2) within the period of limitation by the revenue would therefore inure to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the assessment. 6. The necessary notice u/s 143(2) ought to have been issued before 6 months from the end of the FY in which the ROI was filed u/s 139 by the appellant. 7. In this case the return of income for AY 2012-13 was filed u/s 139 on 31/07/2012 (in time) and the necessary notice u/s 143(2) ought to have been issued on or before 30/09/2013 but the 143(2) was issued ONLY ON 17/10/2013 (BEYOND THE DUE DATE). 8. Since the assessment proceedings is itself void ab initio for having issued the notice u/s 143(2) beyond the due date, the assessment order u/s 143(3) dated 12/03/2014 is ALSO NOT VALID BUT ILLEGAL and has to be quashed. 9. It is requested that the Hon'ble ITAT may please to admit the above additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the return filed on 31.07.2012. The Ld.AR submitted that 143(2) notice was issued to assessee on 17.10.2013 which is beyond the due date and therefore the assessment order passed is without jurisdiction. 3.1 The Ld.AR submitted that the return filed on 31.07.2012 was processed u/s. 143(1) on 17.02.2013 and the time period to issue notice u/s. 143(2) expires on 30.09.2013. He placed reliance on page 5 of paper book wherein notice u/s. 142 issued by the Ld.AO for year under consideration is placed. 3.2 On the contrary, Ld.DR submitted that it is a procedural irregularity as the assessee participated in the assessment proceedings and the same is curable. The Ld.DR vehemently argued that the notice u/s. 143(2) dated 17.10.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time and in accordance with the provisions of this Act. The present case assessee has not received the notice u/s. 143(2) in time and therefore the argument raised by revenue cannot be appreciated. 4.4 The Ld.AR has placed reliance on the judgment of Hon ble Supreme Court in the case of ACIT anr. Vs. Hotel Blue Moon reported in (2010) 321 ITR 362 wherein Hon ble Supreme Court held that an omission on part of the Assessing Officer u/s. 143(2) cannot be procedural irregularity and the same is not curable. As the notice was not issued within the period of limitation, the empathetic statement of law in the absence of issuance of notice u/s. 143(2) within the period of limitation by the revenue would therefore inure to the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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