2013 (10) TMI 1294

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....made by the Assessing Officer, to the income of the assessee on account of suppressed gross receipts. 2. That the learned Commissioner of Income-tax (Appeals)-II, Kanpur has erred in law in annulling the order under section 147/143(3) of the Income-tax Act, 1961 passed by the on December 28, 2007. 3. That the order of the learned Commissioner of Income-tax (Appeals)-II, Kanpur dated February 28, 2013 needs to be quashed and the order passed by the Assessing Officer dated December 28, 2007 to be restored. 4. That the appellant craves leave to modify any of the ground of appeal mentioned above and/or to add any fresh grounds as and when it is required to do so. 2. Though the Revenue has challenged the order of the learned Commissi....

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....e to notice under section 148 of the Income-tax Act, 1961. 5. 23.11.2007 Objection to assumption of jurisdiction and notice under section 148 of the Income-tax Act, 1961 filed by the assessee vide letter dated August 20, 2007. 6. 26.11.2007 The Assessing Officer vide letter F. No. ITO/2(1)/KNP/DD Ahuja/ SCr/2004-05/430 dated November 26, 2007 disposed of the objection of the assessee and give the option to file a letter stating that the return already filed under section 139(1) may be treated as return filed in compliance with notice under section 148 of the Income-tax Act, 1961. 7. 29.11.2007 The appellant filed a letter dated November 29, 2007 stating therein that return filed under section 139(1) of the Income-....

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....he assessee further contended that in the case of CIT v. Rajeev Sharma [2011] 336 ITR 678 (All), the facts are almost similar in which case after filing the return of income in response to notice under section 148 of the Act no notice under section 143(2) of the Act was issued and assessment was completed under section 143(3) read with section 147 of the Act. Having fully relied upon the judgment of the jurisdictional High Court in the case of CIT v. Rajeev Sharma [2011] 336 ITR 678 (All), the learned Commissioner of Income-tax (Appeals) has correctly held that the assessment was not valid and accordingly annulled the same. Our attention was also invited to the judgment of the hon'ble apex court in the case of Asst. CIT v. Hotel Blue Mo....

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....rily issue notice under section 143(2) of the Act within the time prescribed in the proviso to section 143(2) of the Act. Omission on the part of the assessing authority to issue notice under section 143(2) of the Act cannot be a procedural irregularity and the same is not curable. 9. In the case of CIT v. Rajeev Sharma [2011] 336 ITR 678 (All), the jurisdictional High Court have categorically held that the provisions contained in section 143(2) of the Act is mandatory in nature and it is obligatory for the Assessing Officer to apply his mind to the contents of the return filed in response to notice under section 148 of the Act and thereafter issued notice under section 143(2) of the Act before proceeding to decide the controversy regard....