TMI Blog2022 (10) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee u/s 153A, service of notice as per provisions of section 143(2) within prescribed time is mandatory. Therefore, in absence of service of such a notice, Assessing Officer cannot make addition and he is bound to accept income as returned by assessee. Thus, since the Ld. AO did not issue/serve notice under section 143(2) of the Act before completion of assessment under section 143(3) of the Act, the assessment order framed is void. DR has not brought anything on record to substantiate that notice u/s 143(2) of the Act was either issued/served on the assessee prior to completion of assessment. In view of the above, we are of the view that the assessment order is invalid in the eyes of law in absence of a valid issuance and service of notice under section 143(2) of the Act. In the result, appeal of the assessee is allowed on jurisdiction. Accordingly, we are not discussing the merits of the case. - ITA No. 3367/Ahd/2015 - - - Dated:- 19-10-2022 - Shri P.M. Jagtap, Vice President And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri Sakar Sharma, A.R. For the Revenue : Shri James Kurian, CIT-D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2010-11 relevant to assessment year 2011-12. In terms of section 153B(b) of the Act, the assessment for assessment years from 2005-06 to 2010-11 has to be finalised under section 153A of the Act, and for assessment year 2011-12, being the year of search, assessment was to be made under section 143(3) of the Act. The search action was completed on the assessee on 15-03-2011. The assessee furnished its return of income under section 139 of the Act on 30- 03-2012 (though as per the assessment order, the assessee filed its return of income u/s 153A on 01-02-2013). The assessment was completed on the assessee under section 143(3) of the Act on 31-03-2013, making various additions to the returned income of the assessee. 4. In appeal before Ld. CIT(Appeals), the assessee took a technical plea challenging the validity of the assessment order on the ground that the AO did not issue notice under section 143(2) of the Act, which in the instant facts was required to be issued on or before 30-09-2012 i.e. six months from the end of the financial year in which the return of income was filed by the assessee. The assessee submitted that there is no mention of issuance of notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Act applicable to such assessment year, hence, there cannot be any prejudice to the assessee merely because an Assessing Officer proceeds to make an assessment in case of year of search as per the provisions of section 153 A read with section 153B, particularly when time-limit of service of notice under section 143(2), subject to provisions of section J53B, would also be applicable. [Para 15] As per Explanation (/), time-limit prescribed under section 153B for completion of assessment under section 153 A is to override the time-limit provided for completion of assessment under section 143 or 144 in section 153. The heading of section 153B is 'time limit for completion of assessment under section 153 A'. It is a settled principle that heading of a particular section also indicates about nature and scope of such provision and if viewed in this perspective, then, it would again be dear that assessment of the previous year, in which search took place, is required to be completed as per the provisions of section 153A, read with section 153B. In this regard, memorandum explaining the Finance Bill, 2000 as reported in 260 ITR (St.) 219-221, also mentions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if under specific circumstances as provided under section 153C(2) assessment of a person covered under section 153C has to be completed in the manner provided in section 153A then, there should not be any doubt that the assessment in case of a searched person for the year of search has to be completed under section 153A read with section 153B. [Para 18] In view of the aforesaid, It was to be held that the Commissioner (Appeals) was not correct in law in holding that assessment for the previous year in which search took place or requisition was made had to be completed under the normal provisions of the Act. [Para 19] 3.2.1. Hence, following this decision, these contentions of the appellant are rejected and it is held that the AO has rightly made the assessment for. AY 2011-12 u/s 153A of the IT Act, 1961. 6. Before us, the assessee challenged the order of Ld. CIT(Appeals) upholding the assessment order and dismissing the assessee s appeal on the ground of jurisdiction. We observe that the Tribunal directed the assessee to file Affidavit confirming that no notice under section 143(2) of the Act was served on the assessee in hearing dated 24-04-2018 and the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection with regard to issuance and service of notice during assessment proceedings and rather, without any objection, has voluntarily taken part in such proceedings, he could not seek annulment of assessment proceedings on the ground of non-service of notice. Further, DR also placed on record certain judgements to the effect that where in course of a assessment proceedings, various notices were issued to assessee and it was granted a proper opportunity of hearing, mere omission to mention section 143(2) literally in any one of the notices so issued, would not invalidate the assessment order. 7. We have heard the rival contentions and perused the material on record. We observe that despite several opportunities, the DR has not been able to place on record any documents/assessment records/evidence which shows that notice under section 143(2) of the Act was issued/served upon the assessee at any time prior to completion of assessment. The assessee has filed a specific Affidavit to the effect that no notice under 143(2) of the Act was issued/served upon the assessee during the course of assessment proceedings i.e. prior to completion of assessment. The DR has not placed on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue a notice under section 143(2). In the case of Sukhini P. Modi [2014] 52 taxmann.com 50 (Gujarat) , the Hon'ble Gujarat High Court has held that where procedure prescribed of issuance of notice under section 143(2) had not been followed at all, assumption of jurisdiction of issuance of notice of reopening itself would not be sustainable. Again the Gujarat HC in the case of CIT v. Bharat G. Patel [2014] 43 taxmann.com 90 (Gujarat) held that omission on part of Assessing Officer to issue notice under section 143(2) within time prescribed cannot be a procedural irregularity and same is not curable, and therefore, requirement of notice cannot be dispensed with. The Hon'ble Delhi High Court in the case of PCIT v. Silver Line [2016] 65 taxmann.com 137 (Delhi) held that merely because assessee participated in proceedings pursuant to notice under section 148, it would not obviate mandatory requirement of Assessing Officer to issue assessee a notice under section 143(2) before finalizing order of reassessment . The Hon'ble High Court Gujarat High Court in the case of Panorama Builders (P.) Ltd [2014] 45 taxmann.com 159 (Gujarat) held that Section 292BB is only confined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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