TaxTMI 
TaxTMI 
2014 (8) TMI 279
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....14.3.2001 and the assessee complied with this notice by filing return of income declaring same income as was declared in the original return and this compliance was made o 23.4.2001. The Government of India, CBDT, launched a Voluntary Disclosure of Income Scheme [VDIS] on 18.06.1997, which came into force on 1st July 1997. The assessee voluntarily disclosed bogus sundry debtors for taxation but did not pay due tax thereon within the permitted time as specified under VDIS providing the defaulter an opportunity to disclose their income at the prevailing tax rates under the umbrella protection of immunity from major laws relating to economic offences, etc. The above scheme was launched under the terms and conditions which are as under: "The scheme will cover all persons, corporate or non- corporate. The tax payable on the disclosed income will be 30% in the case of individuals and 35% in the case of other declarants, viz, corporates and firms. The tax on the voluntarily disclosed income or wealth would have to be paid before making the declaration, and proof of such payment must be attached along with the declaration. However, where tax is paid within three months of the filling of t....
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....39;ble Jurisdictional High Court by filing writ petition in which the Hon'ble High Court stayed the assessment proceedings initiated against u/s 147/148 of the Act by passing an interim order dated 21.7.2001 on 27.12.2012. The High Court passed judgment dismissing the writ petition and consequently, stay of the assessment proceedings was also vacated. The assessment proceedings were undertaken and the disclosed amount was added. The A.O. also made other additions after disallowing expenses debited in the profit and loss account and also made trading addition apart from making addition u/s 68 of the Act regarding bogus sundry creditors. Aggrieved, the assessee went in appeal and the ld. CIT(A) has given part relief to the assessee. Assessee is further aggrieved and has filed this second appeal before the Appellate Tribunal. 4. Both the parties have reiterated their earlier arguments which were taken from the very beginning from both the sides. 5. Before the first appellate authority, one ground was raised that after vacation of the stay, the A.O. has failed to issue notice u/s 143(2) of the Act. Therefore, reassessment order has become void ab initio and is liable to be annull....
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....legal ground even if it was not raised before any authorities below, can be raised for the first time in case no further investigation of facts is required. In this regard, decision of the Hon'ble Supreme Court rendered in the case of NTPC Vs. CIT reported in 229 ITR 383 [SC] is relevant. In this judgment, it has been held that the Tribunal has jurisdiction to examine the question of law which arises from facts as found by the Income tax authority and has bearing on the tax liability of the assessee, the additional grounds taken by the assessee are to be admitted. However, before this Tribunal, the assessee has mainly raised Ground Nos. 1 and 2 in this regard. The Hon'ble Punjab & Haryana High Court in the case of Vijay Kumar Jain Vs. CIT reported in 99 ITR 349 [P & H] has even gone to the extent in holding that the Tribunal may allow a party to press a ground which he did not press before the first appellate authority although taken and included in the grounds of the first appeal. There are other numerous decisions in this regard. Therefore, now we will examine as to whether the issue of issuance of notice u/s 143(2) is mandatory or not. Section 143(2) reads under: "143 (....
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.... 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." iv) Decision of Gujarat High Court in the case of Dy. CIT 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 the Tribunal were correct in holding that the assessment was void ab initio; contention that the objection raised by the assessee was not maintainable as it was raised for the first time before the CIT(A) and that there was acquiescence and/or waiver on the part of the assessee as it had participated in the proceedings has no merit." Further, the following case laws have also categorically held that in the absence of notice under section 143(2) makes reassessment null and void as Notice u/s. 143(2) is Mandatory: i) CIT vs. Mundra Nanvati (Bombay High Court) (2009) 227 CTR 387 Bom. ii) CIT vs. Pawan Gupta (2008) 304 ITR 177 (Del.) iii) CIT vs. Virendra Kumar Agarwal Appeal No. 2429 OF 2009 DT. 7/1/2010 (Bom. HC) Therefore, in the light of the above judgm....