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TMI Blog2022 (10) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... preciating that/no notice u/s 143(2) ^as issued to the appellant within the time prescribed under the Act. 3. The Ld. CIT (A) erred on facts and in law in holding the assessment order passed u/s 143(3) by Ld. the Assessing Officer to be an assessment order passed u/s 153A r.w.s. 143(3) of the Act. 4. The Ld. CIT (A) erred on facts and in law in making assessment by violating principles of natural justice and without giving any proper opportunity to the appellant before completing assessment. Entire exercise by the Ld. Assessing Officer was to keep appellant engaged with frequent notices issued just before the time barring date/ 5. The Ld. CIT (A) erred on facts and in law in confirming action of the Ld. Assessing Officer in making additions made to the returned income without appreciating that appellant had already disclosed incomes to the extent belonging to the appellant as a consequence of search in return furnished u/s 139 of the Act. 6. The Ld. CIT (A) erred on facts and in law in confirming addition of Rs. 9,30,00,000/- solely on the basis of statement recorded u/s 132(4) of the Act but without any corroborative evidence against the appellant. 7. The Ld. CIT (A) err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the return furnished on 30.03.2012, within the time period specified under the Act, hence income offered in return u/s 139 of the Act has become final and cannot be disturbed. Accordingly, the assessment u/s 153A of the Act is required to be declared invalid. Identical issue has been decided by the Indore Bench of ITAT in its decision in the case of Susheei Kumar Jain 127 ITD (Indore) in favour of Revenue. After discussing the provisions of section 153A, 1533 & 153C of the Act in detail, the Bench has held that the assessment for previous year in which search was initiated u/s 132 has to be done in accordance with the provisions of Section 153A/153B of the Act. The relevant observations of the Bench are as follows: "Thus, absence of requirement of issue of notice under sect/on 153A for the year of search, does not result into an inference that assessment of previous year of search is to be made as per the normal provisions of the Act, specially when state of provisions of section 153A is not different from scope of provisions of section 143 for making assessment of total income of such year. It may further be added that in case, any notice under section 153 A is issued in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility of such assessment being treated as time barred under section 153B(l)(b) because as per the provisions of section 153, the time limit for completion of assessment under section 143(3) is more than the normal time limit available to the Assessing Officer for completing the assessment under section 153A read with section 153B. Further, if the assessment of search year is to be completed under section 143 as such, then, there appears no reason as to why such assessment should be completed within the time limit prescribed under section 153B(l)(b) and not within the time limit prescribed under section J 53, [Para 17] Further, the provisions of section 153C(2) also provide for completion of assessment in respect of the person other than the person referred to in section 153A in the manner provided in section 153A. No doubt, the provisions of section 153C(2) provide for specific situations wherein the assessment in respect of the assessment year relating to the previous year in which search is conducted under section 132 or requisition is made under section 132A has to be made in the manner provided in section 153A. However, where the Assessing Officer having jurisdiction over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department has not been able to produce any documents/assessment records to substantiate that notice under section 143(2) of the Act was issued/served upon the assessee prior to completion of assessment. Before us, the counsel for the assessee submitted that till date, the Department has not been able to produce any records to show that notice under section 143(2) of the Act was issued/served upon the assessee prior to completion of assessment under 143(2) of the Act. He drew our attention to page 8 of the paper book, which is notice issued under section 142(1) of the Act dated 11-01-2013 and submitted that this is the first notice issued by the Department asking the assessee to file return of income. However, the assessee had already filed its return of income on 30-03-2012, afact not controverted by the Department. Accordingly, it is evident that no notice under section 143(2) of the Act was issued/served upon the assessee before 30-09-2012 i.e. within six months from the end of the financial in which the return of income was filed by the assessee. The counsel for the assessee relied upon various judicial precedents on the subject, which have held that in respect of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a prerequisite for framing the block assessment under Chapter XIV-B of the Income-tax Act, 1961. The Supreme Court held that for determination of undisclosed income for a block period under provisions of section 158BC, provisions of section 142 and sub-sections (2) and (3) of section 143 are applicable and no assessment can be made without issuing notice under section 143(2) of the Act. The Karnataka High Court in the case of PCIT v. Cherian Abraham [2022] 137 taxmann.com 73 (Karnataka)held that that the notice issued within the period of limitation, if found not served on the assessee within the stipulated period, i.e., defective service of notice cannot invalidate the assessment, or in other words, the existence of the notice well within the period of limitation prescribed under the provision is sine qua non for invoking section 292BB. The Ahmedabad ITAT in the case of SBG Infrastructure LLP v. DCIT [2021] 130 taxmann.com 319 (Ahmedabad - Trib.)held that where Assessing Officer passed ex parte assessment order under section 144, however, did not issue any notice under section 143(2), assessment order was to be quashed and set aside. The Hon'ble Gujarat High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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