TMI Blog2023 (2) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... en mentioned that there is no notice issued u/s. 143(2) - we realize that it is just a reply but not the determination of the facts by which it can be presumed that no notice u/s. 143(2) of the Act has ever been issued to the Assessee in the assessment proceedings. Hence, we deem it appropriate to remit the additional grounds/issue raised by the Assessee before us, to the file of the ld. Commissioner for adjudication by examining the facts qua notice u/s 143(2) of the ACT. - ITA No. 5150/Del/2018 - - - Dated:- 16-1-2023 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER Appellant by : Sh. Sankalp Malik, Ld. Adv. Respondent by: Sh. Ajay Kumar Arora, Ld.Sr. DR ORDER PER N.K. CHOUDHRY, J.M. This appeal has been preferred by the Assessee against the order dated 24.03.2017, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)- Meerut (in short Ld. Commissioner ), u/s. 250 of the Income-tax Act, 1961 (in short the Act ) for the assessment year 2007-08. 2. In the instant case, the original return of income was filed by the Assessee on dated 31.03.2008 whereby the Assessee had declared total income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.93,70,000/- Less: Cost of inflation as per Indexation price (Rs.4,32,000 x 519/331) Rs. 6,77,365/- To this the following, as shown, will also be added- i) Director's remunerations from M/s Raj Mahal Motels Pvt. Ltd. as shown Rs.1,20,000/- ii) Net rental income for house No.88, Hill Street, Meerut Cantt. and house No.257, Circular Road, Meerut as shown in net Rs.75,600/- iii) Income from other sources as disclosed in the original return Rs.10,000/- Gross total income / Net assessable income Rs.88,98,235/- Or r/o Rs.88,98,240/- 3. The Assessee, being aggrieved, challenged the Assessment order passed by the Assessing Officer in appeal before the ld. Commissioner mainly on the notice u/s. 148 of the Act. The ld. Commissioner by analyzing the factual aspects of the case, dismissed the appeal of the Assessee, by concluding as under: 3. Decision and reasons: Grounds nos. 1 to 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r circle rate and calculated the capital gains. There is no infirmity in the order of A.O and it requires no interference. The order of A.O is confirmed. Ground No. 6 is consequential in nature. 4. In the result, the appeal is dismissed. 4. The Assessee, being aggrieved, is in appeal before us and during the pendency of this appeal, filed an application dated 06.10.2022 alongwith a duly sworn affidavit dated 06.10.2022, for admission of additional grounds, which reads as under : 1. That having regard to the facts and circumstances of the case, Ld. A.O. has erred in law and in facts in framing the impugned reassessment order and that too without assuming jurisdiction as per law and without complying with mandatory conditions u/s 143(2) of the Act.(Affidavit Encl.) 2. That having regard to the facts and circumstances of the case, Ld. A.O. has erred in law and on facts in reopening of the assessment of Assessee and that too without issuing the mandatory notice u/s 143(2), that too within the time stipulated under the provision. 4.1 The Assessee by raising additional grounds of appeal raised the issue that in the instant case, the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce nor any application for any adjournment was filed), as demanded, are enclosed herewith. There is no notice issued u/s 143 (2) of the Act. d) As the col. C) is self explanatory, there is no need to make any comment on this issue. 5.1 From the reply of the Assessing Officer, as mentioned in column No. (c), it appears that no notice has been issued u/s. 143(2) of the Act. 5.2 The Assessee challenged the assessment order before the ld. Commissioner on merit as well as on the ground of validity/not serving of the notice u/s. 148 of the Act. However raised the issue qua non-issuance of notice u/s. 143(2) of the Act, first time before us only. 5.3 The claim of the Assessee is that before finalizing an assessment order u/s. 143(3) of the Act, issuance of notice u/s. 143(2) of the Act is mandatory and in the absence of notice u/s. 143(2) of the Act, the assessment order shall be void ab initio. The Assessee in support of its contention, also relied upon the judgment passed by Hon ble Allahabad High Court in the case of U.P. State Industrial Development Corporation Ltd. vs. CIT-II, Kanpur, 2016 SCC Online (All) 2348. 6. On the contrary, the ld. DR refuted the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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. 7.2 From the judgments of the Hon ble Apex Court referred to above, it is clear that the requirement of notice u/s. 143(2) is mandatory and in complete absence of such notice, the provisions of section 292BB of the Act would become otiose and will not save the Assessment Order. Hence, on the aforesaid analysis, we are of the considered view that issuance of notice u/s. 143(2) before passing an assessment order u/s. 143(3), is mandatory and if no notice has ever been issued u/s 143(2) of the Act, then as per legal fiction as enumerated u/s. 292BB of the Act as well, the participation in the assessment proceedings and/or not challenging the assessment proceedings before passing Assessment order or Appellate proceedings before Ld. Commissioner, on the ground of non-issuance of notice or nonservice of notice within time or service of notice in improper manner u/s. 143(2) of the Act, would not validate the Assessment order and would also not curtail the rights of the Assessee to challenge the same on the point of n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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