9911796707
TMI Blog2025 (3) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued beyond the limitation i.e. on 16.01.2023 which should have been issued on 30.06.2022 and the provisions of Section 292BB of the Act cannot save the delay in the issue of notice but the same relates to service of notice and the mere participation of the assessee in the assessment proceedings cannot cure the inherent non-availability of jurisdiction. 03. The ground no.2 is also in support of ground no.1. 04. The facts in brief are that the assessee filed the return of income on 31.10.2018, declaring total income of Rs. 1,93,89,490/-. A search u/s 132 of the Act was carried out by the investigation Wing on various places of finance brokers on 30.11.2018. During the course of enquires of the Investigation wing, it was revealed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Sanwaria & Kasera to the above extent. Finally, the assessment was framed by the AO vide order dated 27.03.2023, passed u/s 147 read with section 144B of the Act by making an addition of Rs. 28,15,00,000/- u/s 69D of the Act. 05. Aggrieved assessee preferred an appeal before the ld. CIT (A), challenging he additions on legal issue that the notice u/s 143(2) is barred by limitation, as the same was issued beyond a period of 3 months from the end of the financial year for which the return was furnished. The ld. CIT (A) dismissed the appeal of the assessee by holding that the delayed issuance of notice on 16.01.2023, would not invalidate assessment proceeding and the consequent assessment framed as the provisions of Section 292BB of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 30.09.2022, the due date which the AO has failed to adhere to. 7.2.4. However, this is not a case where the AO has failed to issue notice u/s 143(2). In the case laws cited by the assessee, the facts in most of the cases were that the AO has totally failed to issue notice u/s 143(2). Whereas in this case, notice u/s 143(2) was issued but not within time. Thus, the facts of the case as stated by the assessee in the case laws cited by him are different from the case of the present assessee. The issue of notice u/s 143(2) has been distinctly dealt with in the recent judgment of the Hon'ble Supreme Court in the case of CIT Vs Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC) wherein it was held- "For section 292BB to apply, secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 29288 of the Act 9. According to Section 29288 of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2BB. 7.2.6. In the light of the observations and discussions above, it is held the notice u/s 143(2) is valid and the assessment is valid as section 292BB is held to cure defect in issuance of notice u/s 143(2) as notice u/s 143(2) was issued during the proceedings. Accordingly, Ground of appeal 1 is hereby dismissed." 06. The ld. AR vehemently submitted before us that the notice u/s 143(2) of the Act which was issued on 16.01.2023, was beyond the permissible time limit specified in first proviso to Section 143(2) of the Act. The ld. AR submitted that prior to 01.04.2021, the time given for issuance of notice was 6 months, however, the same was substituted by three months by Finance Act, 2021, with effect from 01.04.2021. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of notice after the timeline provided under the first proviso to Section 143(2) of the Act. Therefore, the finding of the ld. CIT (A) are completely misplaced and require to be reversed. 07. The ld DR on the other hand relied on the order of ld CIT(A) on this and submitted that the delay in issuing notice is taken care of by nthe provisions of section 292BB of the Act and therefore the legal ground raised by the assessee may be dismissed. 08. We have heard the rival contentions and perused the materials on records as placed before us. Undisputedly the notice u/s 143(2) was issued after the time line as mentioned in the first proviso to section 143(2) of the Act. The facts qua the notice u.s 143(2) are already discussed above and are n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
