2011 (7) TMI 527

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....determination of this Court:   "Whether on the facts and circumstances of the case, the ITAT was right in law in concurring with the finding of CIT (A) in holding the assessment bad in law, made pursuant to the issue of notice u/s 148 without appreciating that no prejudice was caused to the assessee by non-issuance of notice u/s 143(2), particularly, when the assessee was participating in the assessment proceeding without objecting to the assessment proceedings on this account at the assessment stage?"   3. The facts, in brief, necessary for adjudication as narrated in the appeal, are that on being transpired that the assessee had made deposits aggregating Rs.21,54,32,000/- in the account of different benami/bogus concerns and s....

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.... Act was issued to the assessee which was duly served. In pursuance to the said notice, the assessee appeared before the assessing authority and participated in the re-assessment proceedings on 30.11.2007, 6.12.2007, 12.12.2007, 13.12.2007, 18.12.2007, 24.12.2007, 27.12.2007, 28.12.2007 and 31.12.2007 and also cross-examined the witnesses who were summoned and their statements were recorded. The counsel drew support from a judgment of the Kerala High Court in K.J. Thomas vs. CIT (2008) 301 ITR 301 to submit that non-service of notice under Section 143 (2) of the Act was not fatal to re-assessment proceedings. Reference was made to Section 292BB of the Act and according to the counsel the said provisions were applicable to all pending procee....

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....) not served upon him in time; or   c) served upon him in an improper manner.   Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment."   A presumption has been raised under the said provision relating to service of notice upon the assessee in respect of assessment or reassessment proceedings. According to this provision, where an assessee appears in any proceedings or cooperates in any enquiry relating to assessment or reassessment proceedings, it shall be presumed that the assessee has been validly served and it shall not be open to the assessee to object that the notice was not served upon him or was not served in....