TaxTMI 
TaxTMI 
2013 (8) TMI 924
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.... facts in holding the case as void ab-initio as no notice was served to the assessee u/s 143(2) of the Act and thereby quashing the assessment framed u/s 143(3) read with section 147 of the Act. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in not appreciating the fact that issue of notice u/ 143(2) is immaterial in case the provisions of section 147/148 of the Act are satisfied. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in not appreciating the fact that the Assessing officer is free to initiate proceedings under section 147 and failure to take steps under section 143(3) will not render the Assessing officer powerl....
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....as under:- "1. Whether the proviso to s. 143(2) of the I.T. Act. 1961, which mandates the service of notice within 12 months from the end of the month in which return is filed, also applies to the returns filed pursuant to notice under s. 148 of the I.T. Act, 1961? 2. If the answer to the aforesaid question is in the affirmative then what is the effect of non-service of notice under the proviso to s. 143(2) within the time prescribed, to the return filed pursuant to s. 148 of the I.T> Act, 1961?" {14} The Hon'ble Special Bench, concluded that in view of the legal fiction created by sec. 148 that a return filed under that section is to be treated as one under see. 139, proviso to sec. 143(2) also applies to a r....
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....ould follow. 40. In the light of the analysis of the relevant provisions of law and judicial precedents, we are of the considered view that the return filed pursuant to notice under s. 148 of the Act must be assumed and treated to be a return filed under s. 139 of the Act and the assessment must thereafter be made under s. 143 or 144 of the Act after complying with all the mandatory provisions. Accordingly, it is incumbent upon the assessing authority to issue notice under s. 143 (2) of the Act within the period as stipulated in the proviso thereunder. In this view of the matter, the first question before the Special Bench is answered in affirmative. 41. So far as the issue on question No. 2 is concerned, we hold that no a....
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....there was not any 143(2) notice issued or served on assessee. Besides, ld. DR has also not countered this fact. Therefore, it becomes an admitted position that notice u/s 143(2) neither issued or served on the assessee before reopening the proceedings u/s 148. Reliance is placed on various judgments by CIT(A) and further reliance is placed on Hon'ble Delhi High Court judgment in the case of Alpine Electronics Asia Pvt. Ltd. Vs. DCIT 341 ITR 247, which has laid down following propositions: (i) In case of return filed pursuant to notice u/s 148 it is mandatory to serve notice u/s 143(2) on assessee within stipulated time limit. (ii) Merely because assessee cooperated in the proceedings, section 292 BB cannot cure this jurisdictional defect an....