TMI Blog2022 (12) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction in absence of notice u/s 143(2) of the Act. Hence, the assessment order passed under section 143(3) read with section 147 of the Act is quashed. - Decided in favour of assessee. - ITA no. 4403/Mum./2019 - - - Dated:- 1-12-2022 - SHRI OM PRAKASH KANT , ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL , JUDICIAL MEMBER Assessee by : Shri Ashok Bansal Revenue by : Ms. Smita Nair ORDER PER SANDEEP SINGH KARHAIL , J. M. The present appeal has been filed by the assessee challenging the impugned order dated 11/06/2019, passed under section 250 of the Income Tax Act, 1961 ( the Act ) by the learned Commissioner of Income Tax (Appeals) 13, Mumbai [ learned CIT(A) ], for the assessment year 2009 10. 2. In this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in alternative the disallowance and the addition so made be deleted. 3. During the hearing, the learned Authorised Representative ( learned AR ) wishes to first argue ground No.2, pertaining to the validity of assessment proceedings in absence of issuance of notice under section 143(2) of the Act. 4. The brief facts of the case as emanating from the record are: The assessee is engaged in the business of trading in shares and securities. For the year under consideration, the assessee filed its return of income on 24/09/2009 declaring a loss of Rs. nil. During the year, the assessee has mainly derived income from the business, speculation income, capital gain, and income from other sources. The return filed by the assessee was proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... client code modification comes to Rs. 22,75,255, which was added to the total income of the assessee. The AO estimated the commission charged by the broker at 6% on the fictitious loss and accordingly added Rs. 1,36,515, (i.e. 6% of the fictitious loss of Rs. 22,75,255) to the total income of the assessee. 5. In its appeal before the learned CIT(A), the assessee raised grounds, inter-alia, challenging the validity of assessment in absence of issuance of notice under section 143(2) of the Act. The assessee also challenged the validity of the initiation of reassessment proceedings under section 147 of the Act as well as various additions made by the AO. Vide impugned order dated 11/06/2019, learned CIT(A) dismissed the ground challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny objection in any proceeding or inquity 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 completion of such assessment or reassessment. As per the proviso, Section 292BB does not apply if the assessee has taken such objection before completion of assessment. Such objection should be specific to the point that no notice u/s.143(2) was issued and general objection cannot be made specific by enlarging the scope of words used. 5.10 In view of the above, this ground of assessee is also dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is hereby mentioned that vide above referred letter it was requested to confirm whether notice u/s 143(2) was issued in this case. In view of the above it is stated that as per details available with this office, no details pertaining to notice u/s 143(2) is found. Submitted for necessary action. Yours faithfully, Copy to: 1. Addl.CIT-2(3), Mumbai 2.Addl.CIT-(AU)-10(1), Mumbai Sd/- (Amarjeet) Income Tax Officer-10(3)(1), Mumbai 8. Thus, the Revenue neither could produce the notice issued under section 143(2) of the Act nor could provide the details of the said notice before us. In addition to the above, learned DR submitted that issuance of notice under section 143(2) of the Act is imma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered. by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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