TaxTMI 
TaxTMI 
2013 (9) TMI 332
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....ssessee failed to explain the same." 2. We have heard the learned representatives of both the parties, perused the findings of authorities below and considered the material available on record. 3. On ground No. 1, the Revenue challenged the order of the learned CIT(A) in holding the assessment order to be null and void in absence of issuance of notice under s. 143(2) of the IT Act without appreciating the provisions of s. 292BB of the IT Act. The assessee-firm is engaged in the purchase and sale of motorcycles and spare parts. In this case, the return was filed declaring income of Rs. 1,6,203. Subsequently, notice under s. 148 was issued and the AO completed the reassessment proceedings under s. 143(3)/147 of the IT Act on 27th Dec, 2006 computing the total income of assessee at Rs. 26.22,306 by making additions. The assessee challenged the assessment order before the learned CIT(A) on the ground that since no notice under s. 143(2) has been issued in this case, therefore, reassessment proceedings are null and void. The comments of the AO were called for and in the remand report, the AO stated that on 9th Aug., 2006, Shri Manoj Kumar Agarwal, FCA appeared during the course of....
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....(order sheet entry dt. 24th March, 2006) would have mentioned such fact of no return being on record. And finally, if inspite of AO asking, counsel had not furnished the details regarding return originally filed, then such non-furnishing of details should have been mentioned in the assessment order, and assessment should have been completed under s. 144. In fact, while commenting in remand report, the AO has seemingly become aware of such anomaly, and has tried to underplay it by saying that s. 144 should have been mentioned in place of s. 143(3). But I find this only a face saving argument. I find, all the facts and circumstances, considered together, establish that although appellant responded to notice under s. 148 by referring to original return, the AO made a serious legal error of not issuing any notice under s. 143(2) even till the time of completion of assessment under s. 143(3) r/w s. 147. This lapse has made the entire assessment liable to be quashed, as being null and void. Following amendments and case law are relevant: (i) Amendment: Time-limit for issue of notice under s. 143(2) for the purposes of making assessment or reas....
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..... It was held that the completion of reassessment proceedings was not valid. In the case of a reopened assessment, issue of notice under s. 143(2) within twelve months is statutory. (iv) Case of CWT v. HUF of H.H. Late J.M. Scindia [2008] 217 CTR (Bom.) 531 : [2008] 5 DTR (Bom.) 19 : [2008] 300 ITR 193 (Bom.) Effect of s. 17 : Procedure under ss. 14 to 16 applicable. Notice under s. 16(2) was issued beyond time-limit prescribed under provision of the Act. Reassessment was not valid. The crucial words in s. 17 of the WT Act, 1957, are 'and the provisions of this Act shall, so far as may be, apply as if the return were a return required to be furnished under s. 14'. All the provisions of Chapter IV will have to be read in tandem so as to bring about a uniformity and certainty to an order of assessment. The proviso to s. 16(2) is in the nature of an embargo on the AO, if the period has expired not to issue notice after that period. In other words, the AO is bound to accept the return as filed. Though the notice under s. 16(2) may be procedural, the proviso is not merely procedural but is in the nature of a limitation on the power of....
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....uld not suffice and the copy of the notice issued under s. 143(2) of the Act was not available on record. Since the Department had failed to produce the copy of the notice under s. 143(2) of the Act, there was no option but to agree with the findings of the Tribunal that no such notice was prepared and served upon the assessee. In the absence of this mandatory requirement of issuing statutory notice under s. 143(2) of the Act, the Tribunal had rightly quashed the assessment as null and void." (iv) Decision of Punjab & Haryana High Court in the case of CIT v. Cebon India Ltd 229 CTR (P&H) 188 in which it was held as under : "CIT(A) as well as the Tribunal having recorded concurrent finding that the notice under s. 143(2) was not served on the assessee within the stipulated time, impugned assessment was not valid; absence of notice is not a curable defect under s. 292BB." (v) Decision of Gujarat High Court in the case of Dy. CIT v. Mahi Valley Hotels & Resorts [2006] 287 ITR 360 in which it was held- "Notice under s. 143(2) having been issued beyond the statutory period of one year from the end of the month in which the return was filed, CIT(A) and....