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TMI Blog2025 (2) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ce u/s 143(2) of the Act. 3. Since the legal issue taken by the assessee hits at the very validity of the assessment order, therefore, the same is taken first for adjudication. 4. At the outset, the ld. counsel for the assessee has invited our attention to the reasons recorded by the Assessing Officer for reopening of the assessment, contents of which are reproduced for the sake of ready reference: "Reasons for reopening of the assessment in case of MS. SUNCITY NIKETAN PVT. LTD. PAN: AAPCS4157E for A. Y. 2013-14 u/s. 147 of the Act. The assessee filed its return of income on 25/09/2013 for the A. Y. 2013- 14 declaring total income of Rs. 3,950/- Processing us.143[1] of the Act was completed on 14/04/2014 accepting the returned income. No scrutiny assessment has been made in this case. In the case, on the basis of enquiry and information in the possession of the undersigned which has been received from ADIT(Inv.), Unit-3[2], Kolkata vide letter dated 27/02/2019 wherein it has been stated that as per credible information held with them that M/s. Suncity Niketan Pvt Ltd, M/s. Manikala Dealmark Pvt. Ltd., M/s. Romed Developers Pvt. Ltd, M/s. Devghar Baarter Pvt. Ltd, M.A. finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is reproduced as under: "c) Our assessment for assessment year 2012-13 for also reopened on the basis of the same set of information and an order u/s 143(3)/147 passed on 18/12/2019. A copy of the said order wherein the Assessing Officer has duly accepted our replies is attached for your ready reference. d) Please be informed that we are in business of Investment and Finance and the Nature of transactions are that of purchase and sale of investments. e) The said bank account is duly disclosed in our income tax return and all transactions are reflected in the regular books of accounts. f) The said receipts are genuine business receipt of the assessee whereby we have had sold our investments acquired in previous year to the said companies and the said receipts are duly accounted for and recorded in the books of accounts of the assessee. g) We would also like to draw your kind attention to the recent judgement by "D" Bench of Income Tax Appellate Tribunal, Kolkata in Adbhut Vinimay Private Limited versus ITO, Ward 4(3), Kolkata (ITA No.2484/Kol/2817) whereby learned member has deleted the addition made by ITO u/s section 68 on account of sale of assets/investment acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the year under consideration, the assessee had filed objections against the reopening of the assessment. He has also demonstrated that for the identical reasons, the assessment for immediately preceding year i.e. assessment year 2012-13 was reopened and the Assessing Officer did not make any addition on the same issue in an order passed u/s 143(3)/147 of the Act dated 18.12.2019. At this stage, the ld. counsel has further invited our attention to the impugned assessment order dated 31.03.2022 to show that the Assessing Officer totally skipped the aforesaid facts in the assessment order. He did not decide the objections filed by the assessee and even failed to discuss about the filing of the same and that the additions have been made in a summarily manner without any discussion. He has demonstrated that the Assessing Officer has totally failed to mention as to the alleged nature of the transactions done by the assessee and as to from whom the assessee had received any alleged cash credits. He has submitted that even though the Assessing Officer has passed the order u/s 144 of the Act as best judgment assessment, however, the minimum requirement was that the Assessing Officer shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was issued to the assessee and there is a complete silence about it in the assessment order, which duly proves that no notice u/s 143(2) of the Act has ever been issued to the assessee in this case. The Hon'ble Supreme Court in the case of 'ACIT vs. Hotel Blue Moon' reported in 321 ITR 362 (SC) held that the issue of notice u/s 143(2) is sine qua non to assume jurisdiction to proceed with the assessment in a case. The assessment carried out without issuing any notice u/s 143(2) of the Act in such cases will be bad in law. Reliance in this respect can be placed on the decision of Jurisdictional Calcutta High Court in the case of 'PCIT vs. Nopany & Sons' reported in [2022] 136 taxmann.com 414 (Calcutta) and in the case of 'PCIT vs. Cosmat Traders (P) Ltd.' reported in [2023] 146 taxmann.com 207 (Calcutta). 6.2 Further, the issue is also covered by the decision of the Hon'ble Delhi High Court in the case of PCIT vs. Dart Infrabuild (P) Ltd. in IT Appeal No.10 of 2022 order dated 17.11.2023, wherein, it was held as under: "15.2 The absence of notice, under Section 143(2), impregnates the proceedings with a jurisdictional defect and, hence, renders it invalid in the eyes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: "10. Section 292BB of the Act was inserted by the Finance Act, 2008 with effect from April 1, 2008. Section 282BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated In any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the assessee, has been duly served upon him in time in accordance with the provisions of the Act The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him ; or ii) not served upon him in time ; or (iii) served upon him in an improper manner. IN other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to section 292BB of the Act, however, carves out an exception to the effect that the section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292BB of the Act cannot obviate the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued u/s 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver of right of notice to be issued u/s 143(2) of the Act." 18. As already noticed, the decision of this Court in Vision Inc. (supra) proceeded on a different set of facts. In that case, there was a clear finding of the Court that service of the notice had been effected on the Assessee under Section 143 (2) of the Act. As already further noticed, the legal position regarding Section 292BB has already been made explicit in the aforementioned decisions of the Allahabad High Court. That provision would apply insofar as failure of "service" of notice was concerned and not with regard to failure to "issue" notice. In other words, the failure of the AO, in re-assessment proceedings, to issue notice under Section 143(2) of the Act, prior to finalising the re-assessment order, cannot be condoned by referring to Section 292BB of the Act." 6.3 Reliance can also be placed on another decision of the Hon'ble Delhi High Court in the case of PCIT vs. Staunch Marketing P Ltd. in IT Appeal No.935 of 2015 order dated 28.04.2017 wherein, the Hon'ble Delhi High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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