TaxTMI 
TaxTMI 
2017 (11) TMI 1079
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....tentions perusing the papers on record and order of the authorities below, I hold as follows. 5. I have perused the assessment record produced by the Ld. Departmental Representative. On perusal of the order sheet entries made from 20.03.2014, it is clear that no notice under section 143(2) of the Income Tax Act, 1961 (Act) was issued to the assessee. The submission of the learned DR that the assessee did not file a return of income and hence no notice is required to be issued under section 143(2) of the Income Tax Act, 1961 (Act) is factually incorrect. The assessee had filed its return of income. On these facts the proposition of law is brought out by the 'SMC - 2', Bench, New Delhi, in the case of Ms. Meenakshi Aggarwal, ITA No. 4171/Del/2015 order dated 16.10.2015 wherein at para 4 and 5 it is held as follows: 4. On this factual matrix, I find that the issue is squarely covered in favour of the Assessee and against the Revenue. The ITAT, 'C' Bench, Bangalore in its order dated 10.10.2014 in the case of Shri G.N. Mohan Raju vs ITO passed in ITA No. 242 & 243(Bang) 2013 (A.Yrs 2006-07 & 2007-08), has been held as follows: 7. This brings as to the crux of the i....
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....rovisions of sec. 28 (va) of the Act. 8. A look at section 143(2) is called for at this juncture. It is reproduced hereunder: 143(2) where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the AO shall - (i) where he has reason to believe that ny claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced any evidence or particulars specified therein or on which the assessee may rely, in support of such claim: (Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003). (ii) notwithstanding anything contained in clause (1), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under paid his tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his offic....
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.... 148 of the Act. Or in other words, there was no valid issue of notice u/s 143(2) of the IT act, and the assessments were done without following the mandatory requirement u/s 143(2) of the IT act. This in our opinion, render the subsequent proceedings all invalid. Learned CIT (A) had only adjudicated on a position where there was no service of notices u/s 143(2) of the IT Act. He had not dealt with the scenario, where notice was issued prior to the filing of return by the assessee. We, therefore, quash the assessment done for the impugned assessment years. Since the appeals of the assessee are allowed on its ground 3, other grounds are not adjudicated. ITAT, 'E' Delhi Bench decision dated 08.04.2015 passed in the case of ITO vs Naseman Farms Pvt. Ltd. & Ors. In ITA No. 1175/Del/2011 (AY 2002-13) wherein the Tribunal has followed the decision of the Apex Court in the case of ACIT vs Hotel Blue Moon (2014) 321 ITR 362 (SC). The Tribunal has held as under: 15. In the light of the above, we are of the view that the AO has not issued notice u/s 143(2) which is mandatory. We are also of the view that in completing the assessment u/s 148 of the Act, compliance of the pro....
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....(A) as well the tribunal on the question of date of service of notice. Notice was not served within the stipulated time. Mere giving of dispatch number will not render the said finding to be perverse. In absence of notice being served, the AO had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under section 292BB of the Act. CIT vs Mr. Salman Khan, ITA No. 508 of 2010 1. In the present case, reassessment order passed under section 143(3) r/w 147 of the Income Tax Act, 1961 is held to be bad in law in view of the fact that the assessing officer has not issued notice under section 143(2) after issuing notice under section 148 of the Income Tax Act, 1961. This Court in the case of the Commissioner of Income Tax Viz. Mr. Salman Khan [Income Tax Appeal No. 2362 of 2009] decided on 1st December, 2009 has considered similar question and has held that in the absence of notice under section 143(2) (prior to the insertion of section 292BB), the reassessment order cannot be sustained. In the present case, the reassessment year involved relates to the period prior to the insertion of section 292BB. In this view of the matter, the appeal is d....
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....d in this case that absence of notice is not curable defect u/s 292BB of the IT Act. Considering the above discussion and the case laws cited above, the sole objection of the Revenue is not maintainable. Therefore, the Ld. CIT(A) was justified in setting aside the entire assessment order. We, therefore, do not find any infirmity in the order of the Ld. CIT(A) for interference. (v) The Hon'ble Mumbai Bench of the ITAT has, in the case of Sanjeev R Arora v. ACIT [IT (SS) No. 103/Mum/2004 dated 25.07.2012] recorded its findings as under. Even the irregularity in proper service of notice which can be treated as curable under section 292BB of the Income Tax Act is only in the cause where the notice under section 143(2) was issued properly and within the period of limitation and the assessee did not raise any objection regarding the service of the notice during the assessment proceedings and also participated in the assessment proceedings then at a later stage the assessee is precluded from raising such objection. Therefore, the provisions of section 292B are not applicable in the case where the assessing officer has not at all issued notice under section 143(2) within ....