TMI Blog2023 (3) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... otice issued after the prescribed time limit is not valid for the reason that the AO has no power to issue such notice after expiry of 6 months from the end of financial year in which return has been field. Therefore, any assessment made based on notice which itself is not valid will also become void ab initio. In holding so we also draw support and guidance from the judgment of Hon ble Gujarat High Court in case of DCIT vs. Mahi Valley Hotels Resorts [ 2005 (8) TMI 84 - GUJARAT HIGH COURT] . The provision of section 292BB of the Act does not deal about the issuance of notice. In the present case, the issue is whether the assessment framed under section 147/143(3) of the Act is valid in a situation where the mandatory notice under section 143(2) of the Act was issued beyond statutory time limit prescribed. Accordingly, we hold that, the provision of section 292BB of the Act does not extend any benefit to the Revenue. We conclude that there was not issued the valid statutory notice under section 143(2) of the Act within the prescribed time. The Ld. DR has also not brought anything on record contrary to the arguments advanced by the Ld. AR for the assessee. Thus in the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of National Thermal Power Co. Ltd. vs. CIT (1998) 229 ITR 383 (SC). 4. In view of above, the appellant therefore makes this prayer to allow to raise this additional ground of appeal with a further prayer that the same may kindly be adjudicated upon. 3.1 Since the issue raised by the assessee in additional ground of appeal is legal in nature and goes to the root of the matter, we, after considering the principles of law laid down by the Hon ble Supreme court in this regard in the case of National Thermal Power Co. Ltd vs. CIT reported in 229 ITR 383, hereby allow the same. The facts in brief are that the income escapement proceedings under section 147 of the Act were initiated in the case of assessee by issuing notice under section 148 of the Act dated 13-08-2015. Thereafter, the AO framed the assessment under section 147 r.w.s. 143(3) of the Act vide order dated 30-12-2016 after making certain additions to the total income of the assessee. 4. On appeal by the assessee, the learned CIT(A) also confirmed the addition made by the AO on the merit of the case. 5. Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us and filed addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions running into 1 to 11 pages. 9. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case raises the situations as detailed under: 1- Whether the issue of notice under section 143(2) of Act was mandatory to frame assessment under section 143(3) r.w.s. 147 of the Act. 2- Whether the assessment made under section 143(3) read with section 147 of the Act is valid in a situation where the notice under section 143(2) was issued beyond the statutory time limit prescribed under the Act. 3- Whether the provision of section 292BB of the Act is attracted in the given facts and circumstance so as to make the assessment valid. 10. It is settled position of law that the once notice for reopening assessment under section 148 of the Act was issued, the assessee is required to furnish return of income in response to such notice. It is further provided that the return filed under section 148 of the Act is deemed to have filed under section 139 of the Act. Therefore, all the provisions specified under section 139 of the Act comes into play to a return filed under section 148 of the Act. The relevant prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedures prescribed in and subsequent to section 139 automatically apply in toto. It is a settled principle that a legal fiction has to be taken to its logical conclusion and, therefore, what is valid for a return under section 139 will be valid with equal force to a return filed under section 148. Therefore, the proviso will apply to a return filed in response to notice under section 148. Clause (b) of section 158BC specifically talks of the applicability of section 142, sub-sections (2) and (3) of section 143. There is an omission of sub-section (1) of section 143. This Chapter clearly prescribes its own return, form of own methodology for computation of income but falls back on the provisions of sections 142, 143 and 144 etc., only for procedural aspect. If the proviso is made applicable, then a clash erupts between the provisions of Chapter XIV-B with section 143(2) as the assessment is mandatory under this Chapter. [Para 31 11.3 We also find support and guidance from the judgment of Hon ble Kerala High Court in the case of Lally Jacob v/s ITO reported in 197 ITR 439 wherein it was held as under: A reading of sections 147 and 148 makes it clear that, at any rate, an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid or the provisions of section 292BB of the Act come to rescue the revenue. In this regard, we refer the provision of section 143(2) of the Act which reads as under: (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return: Provided that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.] 13.1 From the perusal of the above it clear that where return has been filed under section 139 of the Act (here u/s 148 of the Act) and the AO consider it necessary to dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. The position in law is well-settled that if the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, such requirement are, in all cases absolute and neglect to attend to such requirement will invalidate the whole proceeding. 13.2 We further note that the provisions of section 292BB of the Act deals with the situation where notice is not served or not served on time or served in improper manner viz a viz the assessee does not raise objection before the completion of the assessment. As such, the provision of section 292BB of the Act does not deal about the issuance of notice. In the present case, the issue is whether the assessment framed under section 147/143(3) of the Act is valid in a situation where the mandatory notice under section 143(2) of the Act was issued beyond statutory time limit prescribed. Accordingly, we hold that, the provision of section 292BB of the Act does not extend any benefit to the Revenue. 14. In holding so we find support and guidance from the judgment of Hon ble Gujarat High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he would have no means of knowing as to whether or not the Assessing Officer has accepted the return of income as filed by him. As held by the Supreme Court, omission to issue a notice under section 143(2) is not a procedural irregularity and is not curable. It is, therefore, mandatory to issue notice under section 143(2) of the Act. Section 292BB provides for a deeming provision that any notice under any provision of the Act, which is required to be served upon the assessee, has been duly served upon him in time, in accordance with the provisions of the Act. This section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of the present case, at the cost of repetition, it may be stated that no notice under section 143(2) has been issued after the assessee had filed its return of income and hence, section 292BB would not be attracted. In the light of the fact that non-i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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