TaxTMI 
TaxTMI 
2017 (7) TMI 418
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.... by the assessee. The affidavit says that Shri. M. Karthik Kumar had left the office of Shri. V. Ramnath, without informing that the appeal was not filed. As per assessee, it came to know that appeal was not filed only on receiving notice for levy of penalty u/s.271(1) (c) of the Act. As per assessee immediately when the matter came to his notice, he ensured that the appeal was filed. As per assessee the delay of 268 days, in filing the appeal was not due to any negligence. 3. Opposing the delay petition, ld. Departmental Representative submitted that there was nothing on record to show that delay was due to a failure which happened in the office of Shri. V. Ramnath, Chartered Accountant. 4. We have perused the affidavits and also carefully heard the parties. We find that condonation petition of the assessee is supported by an affidavit filed by Shri. V. Ramnath, who was a partner in the firm M/s. K.S. Palaniswamy & Co., Chartered Accountants, Coimbatore. Shri. V. Ramnath in the said affidavit has given reasons for the delay in filing the appeal. According to his affidavit, the appeal was to be filed by one Shri. Karthik Kumar an articled clerk in his office who had left abruptly....
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....mmissioner of Income Tax vs. Silver Line, 383 ITR 455 and Pr. Commissioner of Income Tax vs. Shri Jai Shiv Shankar Traders Pvt. Ltd 383 ITR 448. 6. Per contra, ld. Departmental Representative submitted that the assessment was completed based on the return filed by the assessee pursuant to notice issued u/s. 148 of the Act, accepting the income returned. According to ld. Departmental Representative assessee having participated in the assessment proceedings, want of notice u/s.143(2) of the Act stood cured by Sec. 292BB of the Act. 7. We have considered the rival contentions and perused the orders of the authorities below. There is no doubt that ld. Authorised Representative of the assessee had appeared before ld. Assessing Officer during the course of re-assessment proceedings. We have also perused the assessment records. Nothing whatsoever is mentioned regarding issue of any notice u/s.143(2) of the Act, either in the order sheet or at any place in the concerned file. Ld. Departmental Representative has also not strongly contested the claim of the assessee that there was no issue of notice u/s.143(2) of the Act. The question whether issue of notice u/s.143(2) of the Act is mandat....
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....authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable, and therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The legislation referring to the compliance of the provisions under Section 143, 144 and 145 of the Act is a legislation by incorporation. Thus, where the Assessing Officer repudiates the return filed by the assessee in response to notice under Section 158BC(a), the Assessing Officer must necessarily issue notice under Section 143(2) of the Act. Dealing with the contention that the issue of notice is not mandatory but optional and is to be applied to the extent practicable, in view of expression "so far as may be" in Section 153BC(b), the Apex Court pointed out that the expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. Rejecting the contention of the Revenue that it is not expedient to follow the provisions under Sections 142 and 143 (2) and (3) strictly for the purpose of block assessment, the Apex Court held that in completing the assessment, when the officer repudiates the return filed under Sectio....
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....quiry that the notice was (i) not served upon him; or (ii) not served upon him in time; or(iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to s. 292BB of the Act, however, carves out an exception to the effect that the section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Sec. 292BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the AO to make an order of assessment under s. 143(3) of the Act, it is necessary to issue a notice under s. 143(2) of the Act and in the absence of a notice under s. 143(2) of the Act, the assumption of jurisdiction itself would be invalid." 16. In the same decision in CIT vs. Salarpur Cold Storage (P) Ltd. (supra), the Allahabad High Court noticed that the decision of the Supreme Court in Asstt. CIT vs. Hotel Blue Moon (supra) where in relation to block assessment, the Supreme Court held that the requirement to issue notice under s. 143....
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....far as failure of "service" of notice was concerned and not with regard to failure to "issue" notice. In other words, the failure of the AO, in reassessment proceedings, to issue notice under s. 143(2) of the Act, prior to finalising the reassessment order, cannot be condoned by referring to s. 292BB of the Act''. Thus, it is clear that Sec. 292BB of the Act can cure a case of non service of notice and not a non-issue of notice. In the case before us, as already mentioned by us, there was no issue of notice u/s.143(2) of the Act. 9. Before parting with it, it will be inappropriate if we do not deal with the argument of the ld. Departmental Representative that such notice was held not mandatory by Hon'ble Delhi High Court in the case of Madhya Bharat Energy Corporation Ltd (supra). Relevance of the above judgment was also discussed by Delhi High Court in the case of Shri Jai Shiv Shankar Traders Pvt Ltd (supra) at paras 8 & 9 of its judgment. "8. When this appeal was first listed before this Court on 29th July, 2015 reliance was placed by Ms. Suruchi Aggarwal, learned senior standing counsel for the Revenue on the decision of this Court in CIT vs. Madhya Bharat Energy Corpn. Lt....