TaxTMI 
TaxTMI 
TaxTMI 
2008 (1) TMI 444
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....id ground may be recorded. An assessment was originally made on the assessee under section 143(3) of the Income-tax Act by order passed on 26-3-1998. In this order, the total income of the assessee was determined at Rs. 2,64,815. On 22-3-2000, a notice was served on the assessee under section 148 of the Act, reopening the assessment. On 23-3-2000, the assessee wrote a letter to the Assessing Officer in which he stated in paragraph 3 that the return of income already filed at the time of the original assessment may be deemed to be the return filed in compliance to the notice under section 148 as there were no reasons to make any change therein and as all the income and the particulars were fully disclosed in the return at the time of framing the original assessment. On 24-2-2002, the assessee wrote another letter to the Assessing Officer in which the assessee asked for issue of a notice under section 143(2) of the Act [the reference to section 143(3) in the letter is obviously a mistake]. On 14-3-2002, the assessee wrote another letter to the Assessing Officer in which at two places in page 2 of the letter the assessee pointed out that till date no notice under section 143(2) was se....
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....tion in order to stall the proceedings and to get undue benefit in appellate proceedings. It has further been submitted that perusal of assessment records reveals that notice under section 143(2) was issued. However, the copy of the same is not on record at present. Other notices such as notice under section 142(1) dated 31-1-02 and notice under section 142(1) dated 10-12-01 were issued and duly served upon the appellant. 4.1 From the assessment order, I find that the Assessing Officer has mentioned that notice under section 143(2) has been issued and Shri Jacob Phillips and Shri S.K. Aggarwal, CAs have attended the proceedings from time to time and they were apprised of the valuation reports against which objections have been filed by the appellant and they have been discussed. However, the copy of notice was not produced by the Assessing Officer as the same was not on record but it appears that the appellant has been given opportunity of being heard as Shri Jacob Phillips and Shri S.K. Aggarwal, CAs have attended the proceedings and have given their objections for the additions. Hence, it appears that notice under section 143(2) has been issued and accordingly ground of appeal ....
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....rn on 23-3-2000 on the strength of the above judgment, then the notice under section 143(2) cannot be issued beyond 31-3-2001. The learned representative for the assessee further submitted that section 292B of the Act can come to the rescue of the Assessing Officer only if a notice had been actually issued but it contained some inconsequential mistakes or omissions and cannot come to the rescue of the Assessing Officer if no notice was issued at all. He further clarified that the Assessing Officer was not correct in saying that the assessee appeared before him in response to the notice issued under section 143(2). It was stated that the assessee appeared before the Assessing Officer only in response to the notices issued on 10-12-2001 and 31-1-2002 under section 142(1) of the Act. It was submitted that in any case, if factually it is found from the record that no notice was issued to the assessee under section 143(2) of the Act then the Assessing Officer's statement would stand disproved. On these facts, it was contended that the assessment should be quashed as null and void. 7. The learned Senior DR, on the other hand, strongly relied on the judgment of the Madras High Court ....
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....proviso to section 143(2) which mandates service of notice within the period of 12 months from the end of the month in which the return is filed also applies to returns filed pursuant to notice under section 148. It has further been held that if the notice is not served within the said period the Assessing Officer loses his jurisdiction to make an assessment under section 143(3), read with section 147. This judgment squarely applies the facts of the present case. In fact, in the present case, no notice under section 143(2) was issued at all and thus it is a fortiori. The cases of Lunar Diamond Ltd. and Vardhman Estate (P.) Ltd., both of the Hon'ble Delhi High Court, are not cases of reassessment under section 147 but that, in our opinion, should make no difference to the result because even where an assessment is reopened under section 147 read with section 148, the assessment order is ultimately passed only under the provisions of section 143(3). Therefore, the ratio of these judgments is applicable to cases of reassessments also. The judgment of the Rajasthan High Court in the case of Tiwari Kanhaiya Lal is authority for the proposition that if an assessee feels that it is no....
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....essing Officer of the statutory duty of issuing and serving the notice under section 143(2) within the stipulated time. The non-issue of the notice is a fetter on the Assessing Officer from completing the assessment under section 143(3). He can only accept the return as such. As regards the judgment of the Madras High Court cited by the learned Senior DR, in view of the judgments of the Hon'ble jurisdictional High Court, the former cannot be given effect to. 9. We are unable to agree with the CIT(A) that a notice "appears" to have been issued under section 143(2). He has examined the record and has found that "the copy of the same is not on record at present". He has used guarded words, such as "at present". Nevertheless, he has proceeded to hold that a notice "appears" to have been issued. We are unable to appreciate how in the absence of any evidence for issue or service of the notice, or even a copy of the notice on file, such a finding could have been recorded by the CIT(A). 10. We have also examined the proviso to section 148(1) inserted by the Finance Act, 2006 with retrospective effect from 1-10-1991 to find out its applicability to the present case. The first proviso ....