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TMI Blog2016 (2) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer and is engaged in the business of wholesale and retail sale of vegetables. The assessee had filed the return of income for the assessment year 2001-02 disclosing a total income of Rs.1,42,651/- and agricultural income of Rs.10,000/-. 5. A search u/s. 132 and surveys u/s. 133A of the Act were conducted at the business and residential premises of the assessee. According to the Department, incriminating documents were found in the possession of the assessee showing unaccounted income held by him. Pursuant thereof, a notice u/s. 153A was issued to the assessee on 14/12/2007 to file the return of income. In response, the assessee filed the return of income for the assessment year 2001-02 on 16- 03-2007 declaring a total income of Rs.1,77,650/- and agricultural income of Rs.10,000/-. Thereafter, notice u/s. 143(2) of the Act was issued to the assessee on 30-05-2008. The Assessing Officer vide order dated 30-12-2008 completed the assessment and determined the income of the assessee for the assessment year 2001-02 at Rs.23,15,770/-. 6. Aggrieved by the assessment order dated 30-12-2008, the assessee challenged the same before the Ld. CIT(A). Apart from the grounds raised in Form No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 raises such objection before the completion of such assessment or reassessment." 4. Clause 42.7 of the relevant CBDT Circular (Circular No. 1 of 2009 dated 23/07/09) clearly states that the provision of new section 292BB shall apply in all proceedings which are pending on 1st April 2008. In the instant case the Authorized Representative appeared on behalf of the assessee on various dates between 02/09/2008 to 23/12/2008 and furnished all the details as required for the completion of assessment. Thereafter, the Assessing Officer, after duly considering all these details, passed the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid as per section 292BB of the Act 10. We shall first take up Ground No. 2 raised by the Revenue. The principle question to be decided in this appeal is whether the failure on the part of the Assessing Officer to issue notice as per provisions contained in section 143(2) of the Act will render the assessment u/s. 153A r.w.s. 143(3) invalid. 11. The Ld. AR submitted that the assessment made u/s. 153A r.w.s. 143(3) has been rightly treated as void abinitio by the Ld. CIT(A) as no valid notice u/s. 143(2) was issued to the assessee for initiating the assessment. It is the case of the assessee that the provisions of Explanation (1) to section 153A are unambiguous in this regard. The Ld. AR argued that the assessee filed the return of income on 16-03-2007 and the Revenue ought to have served the notice u/s. 143(2) before 30-09-2007. The notice was instead served only on 07-06-2008. The Ld. AR further argued that the Assessing Officer gets jurisdiction only by issuance of notice u/s. 143(2) and the same is absolutely required in the cases of search assessments u/s. 153A of the Act. In sum and substance, the argument of the Ld. AR was that in search assessments, all other provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 132 or making of requisition under section 132A, as the case may be, shall abate.; Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Principal Commissioner or Commissioner; Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement of issuance of notice u/s. 143(2) of the Act which is not the case u/s. 153A of the Act. The Hon'ble Delhi High Court in the case of Ashok Chaddha (supra) while distinguishing the ratio laid down in the case of Hotel Blue Moon (supra) has held as under:- "9. There is no specific provision in the Act requiring the assessment made u/s. 153A to be after issue of notice u/s. 143(2) of the Act. Learned counsel for the assessee places heavy reliance on the judgment of the Hon'ble Supreme Court in Hotel Blue Moon vs. DCIT (Supra) wherein it was held that the where an assessment has to be completed u/s. 143(3) read with section 158BC, notice u/s. 143(2) must be issued and omission to do so cannot be a procedural irregularity ad the same is not curable. It is to be noted that the above said judgment was in the context of Section 158BC. Clause (b) of Section 158BC expressly provides that "the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of Section 142, sub sections (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be, apply. This is not the position u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 525- 530/Mum/2008 dated 20-05-2015 wherein due to difference of opinion between the Members, the following questions were referred to the Hon'ble President of ITAT for decision:- "(a) Whether non-issuance of the notice as provided in Sub-section (2) to Section 143 of the I.T. Act in the case of assessment framed under section 153A, in consequence of search under section 132, is merely an irregularity and the same is curable? (b) Whether on the facts of the case, failure on the part of the Assessing Officer to issue notice to the assessee as per provisions of sub-section (2) to section 143 shall have the effect of rendering the entire assessment framed under section 153A of the Act as null and void?" 18. The Bench referring to the decision relied upon by the parties therein held as under: "The Learned Counsel for the assessee urges that the decision ignores the ratio laid down in Hotel Blue Moon (supra) as also of the jurisdictional High Court in Geno Pharmaceuticals Ltd. (supra). Adverting to the first submission, the case of Hotel Blue Moon was urged before the Court in Ashok Chaddha and has been distinguished on its applicability to section 153A. Adverting to the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A whereas the judgment of Hon'ble Allahabad High Court is in the context of section 147 of the Act. 7. We have considered the rival submissions. We find that the judgment of Hon'ble Allahabad High Court in the case of Rajeev Sharma (supra) is in the context of assessment u/s. 147 whereas the judgment of Hon'ble Delhi High Court in the case of Ashok Chaddha (Supra) is in the context of assessment u/s. 153A and in this judgment, it was held that the requirement of issue and service of notice u/s. 143(2) is not applicable in the assessment made in compliance to notice u/s. 153A. We also find that in the case of Rajeev Sharma(Supra), the decision of Hon'ble Allahabad High Court is in favour of the assessee but the same is in the context of section 147 of the Act. We have already considered both these judgments in a case and have decided the issue against the assessee by following the judgment of Hon'ble Delhi High Court and the judgment of Hon'ble Allahabad High Court in the case of Rajeev Sharma (Supra) was not followed because the this judgment is in the context of section 148 assessment and not assessment u/s. 153A. No other judgment has been brought to our notice by Learned A. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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