TaxTMI 
TaxTMI 
2015 (5) TMI 1031
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.... question, which is noted by Shri D.Manmohan, Hon'ble Vice-President, viz:- "(a) Whether it is necessary to issue notice under section 143(2) to acquire jurisdiction in proceedings under section 153A of the I. T. Act?" 3. Under these circumstances, in the Third Member reference, the Hon'ble Vice-President, put forth two preliminary issues for decision, as under- "(a) Whether the Hon'ble President / Third Member is competent to reframe the points of difference to bring to focus the issues that emerge out of the orders passed by the respective Members of the Division Bench? and (b) Whether the learned CiT-DR is authorized to request the Hon'ble President for reframing of question to bring into focus the points of difference emerging out of the orders passed by the respective Members of the Division Bench?" 4. I have carefully considered the submissions made by the learned Counsels appearing for the parties. I do not find that the additional issue raised by the CIT-DR in the reference under consideration requires to be considered as in fact both the questions on the difference of opinion take care of the department's additional issue. Insofar as the prelimin....
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....oceeds to make an enquiry, he has necessarily to follow the provisions of section 142, subsections (2) and (3) of section 143." (page 370) (emphasis supplied). Learned Counsel for the assessee also contended that the jurisdictional High Court in ACIT v. Geno Pharmaceuticals Ltd. in Tax Appeals No.75, 76, 77 & 78 of 2012 after noticing the factual matrix holds "........However, ITAT dismissed the appeal by order dated 11th May,. 2012 and accepted the new ground which was raised by the respondent, namely That the notice under Section 143(2} of the Act is mandatory and it is not a procedural irregularity .Similarly, for the AY 2006-2007 also the same orders were passed by the Commissioner of Income Tax (Appeals) and the ITAT."........ ."4. So far as Tax Appeals No.77/2012 and 78/2012 are concerned, in both these appeals, the ITAT has held that the issuance of notice after reopening of the case was mandatory and this order is under challenge. It is contended that the said order is contrary to the provisions of Sections 292BB which was introduced by the Finance Act 2008 w.e.f 01.04.2008, in which it is stated that in a case where an assessee has appeared in any proceedings or co-opera....
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....(Delhi)}. This was a case u/s 153A of the Act and the question raised was whether the provisions of section 143(2) of the Act for issuance of notice are attracted or not. In this case, two issues were raised for the consideration of the High Court, viz,, "(a) Whether the issue of notice under section 143(2) of the income-tax Act is mandatory for finalization of assessment under section 153A?, (b) Whether the findings of the authorities below upholding the addition of Rs. 10 lakhs of cash seized from Mr. D. S. Rawat in the hands of the assessee was perverse and required to be set aside?". The issue was answered by the High Court against the assessee. Proceeding with the reasoning, holds :- "8. Admittedly, the assessee was issued a notice under section 153A of the Act, in response to which he had filed a return of income. Thereafter, two detailed questionnaires were issued to the assessee before the completion of assessment. Section 153A of the Act provides procedure for assessment in case where a search is initiated or documents are requisitioned. The relevant portion of section 153A is reproduced hereunder: "153A. Assessment in case of search or requisition.-(1) Notwithstanding....
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.... the case of regular assessment as also on block assessment. This being a case of assessment based on search under section 153(A), the same is not applicable to the present case, in the case of Raj Kumar Chawia [2005] 227 ITR (AT) 225 (Delhi) [SB] relied upon by learned counsel for the assessee was that of the Tribunal, wherein, a view was taken that if a return filed under section 148 of the Act is sought to be scrutinized, the compliance of provision contained in proviso under section 143(2) of the Act is mandatory. The issue of requirement of notice under section 143(2) for an assessment under section 147 came up for consideration before this Court recently in CIT vs. Madhya Bharat Energy Corporation Ltd. (I.T.A No, 950 of 2008, decided on July 11, 2011) 337 ITR 389 (Delhi) . In that case also, this Court has held that in the absence of any specific provision under section 147 of the Act, the issuance of notice under section 143(2) cannot be held to be a mandatory requirement. 11. It is also to be noted that section 153A provides for the procedure for assessment in case of search or requisition. Sub- section (1) starts with non-obstante clause stating thai it was "notwithstandi....