TaxTMI 
TaxTMI 
2017 (12) TMI 517
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....essee has raised following objections: - "1. That the Ld CIT (Appeals) has erred in dismissing the ground of appeal "That, on the facts and circumstances of the case and in law, in any view of the matter, the impugned assessment completed u/s 143(3) of the Act vide order dated 23.12.2011 without complying the legal and mandatory provision of section 143(2) of the Act for issue of legal and mandatory notice is unjustified, unwarranted and not according to law" holding that the appellant has not taken such objection during course of assessment proceedings as stipulated in section 292BB of the Income Tax Act, 1961. 2. That, on the facts and circumstances of the case and in law and in any view of the matter, the Ld. Authorities below have erred in making and upholding the addition of Rs. 9,09,110/- of cash found during course of search proceedings u/s 132 of the Income Tax Act, 1961. 3. That, on the facts and circumstances of the case and in law and in any view of the matter, the Ld. Authorities below have erred in making and upholding the addition of Rs. 7,61,199/- on account of alleged unexplained investment in gold coins, gold bullion pieces and silver coi....
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....ound and upheld the validity of assessment completed without issuing the notice u/s 143(2) of the Act, invoking the provisions of section 292BB of the Act. The Ld. CIT (A) has dismissed the legal ground, mentioning that the assessee had attended the assessment proceedings and had not objected the fact of non-issue of notice u/s 143(2) during assessment proceedings. The observations of the ld CIT (A), reads as under:- "The appellant has attended and cooperated in the assessment proceedings. Now, the appellant is not allowed to take any such objection at appeal stage if such objection was not raised during assessment proceedings. The appellant has not taken such objection during course of assessment proceedings. Therefore, in view of the legal position as stipulated in section 292BB of the Act, the appellant is precluded from taking any objection at the appeal stage and accordingly additional ground taken by the appellant is not maintainable and is hereby dismissed." 6. The Ld. Counsel for the assessee submitted that in this case, a search u/s 132 of the I. T. Act, 1961 was conducted from 11.03.2010, from 8.30 a.m. to 12.03.2010 p.m., as per Panchanama (APG, Page 33-35) a....
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....g that the appellant had not taken such objection during the assessment proceedings; and therefore, in view of section 292BB, the appellant was precluded from taking such objection at the appeal stage. Thus, the Ld. CIT (Appeals) has not objected to the contention of the assessee regarding non issue of notice u/s 143(2). The Ld. CIT (Appeals) has dismissed the ground merely by saying that the issue is covered by section 292BB, because the assessee had cooperated in the assessment proceedings. 6.4 He has also submitted that section 292BB applies only in the case of improper service / wrong service and not to objection not taken by the assessee during assessment proceedings. Section 292BB does not save the defect of non-issue of notice u/s 143(2). He has relied on 'CIT v. Cebon India Ltd.' [2012] 347 ITR 583 (Punj. & Har.), wherein, it is held that a concurrent finding had been recorded by the Commissioner (Appeals) and the Tribunal on the question of date of service of notice. The notice was not served within the stipulated time. Mere giving of dispatch no. would not render the finding perverse. In the absence of notice being served, the assessing officer had no jurisdiction to m....
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....he requirement of notice u/s 143(2) cannot be dispensed with (APB, age no. 22)." 6.8 In the case of 'CIT v. Gujarat Fioils Ltd.' [2015] 377 ITR 324 (Guj.) also it was held that: "................... the Tribunal has held the assessment order u/s 143(3) as void ab initio by observing that the notice u/s 143(2) was issued beyond the period of limitation, i.e. beyond the period of twelve months or the end of the month for which there turn was filed u/s 139 was concerned, it is required to be noted that the return was filed by the assessee on 31.12.1999, and notice u/s 143(2) was served upon the assessee on 25.08.2001. under those circumstances, the notice was issued beyond the period of one year." (Head note, APB, Page no. 24) 7. Per contra, the Ld. DR, vehemently supported the impugned order, relaying on the decision of Hon'ble Delhi High Court in the case of 'Ashok Chaddha v. ITO' [2011] 337 ITR 399. The ld DR contended that the assessment being completed under section 153A, there is no requirement of issue of notice under section 143(2) of the Act. He submits that in any case, there is no prescribed proforma for issuing the notice. The notice is actually issued....
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....he assessee. The return of income was furnished on 24.08.2011, as per the provisions of section 139 of the Act. The assessment for the previous year (Financial year) 2009-10 relevant to assessment year 2010-11 was completed u/s 143(3) of the Act, vide assessment order dated 23.12.2011 under the regular assessment procedure, as the AO noted the section 143(3) under which the assessment order is completed, at page 1 of his order. Non-issue of notice u/s 143(2) prior to completion of assessment is not a curable defect as held by the Apex court in the case of 'Hotel Blue Moon' (supra). 12. The Ld. CIT (A) has dismissed the legal ground observing that the assessee did not object to the fact of non issue of notice u/s 143(2) during the assessment proceedings and that therefore, in view of the provisions of section 292BB of the Act, the assessee is precluded from taking the ground regarding non issue of notice u/s 143(2) at the appeal stage. The CIT (A) has, thus, accepted the fact of non issue of notice u/s 143(2) and its impact on the assessment proceedings, considering it as a mandatory requirement. 13. The AO had issued notices u/s 142(1) on 18.11.2011 and 12.12.2011, as mention....
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....Hotel Blue Moon' (supra) and ratio involved in this decision will apply to the present appeal also. In the case of 'Hotel Blue Moon' (supra) it was held that if the Assessing Officer, for any reason, repudiates the return filed by an assessee in response to the notice under section 158BC(a) of the Act relating to a block assessment, the Assessing Officer must necessarily issue a notice under section 143(2) of the Act, within the time prescribed in the proviso to section 143(2). It was further held that by making the issue of notice mandatory, section 158BC, dealing with block assessments, makes such notice the very foundation for assumption of jurisdiction; that Such notice is required to be served on the person who is found to have undisclosed income and that the requirement of notice under section 143(2) cannot be dispensed with. 16. The Hon'ble Madras High Court in the case of Gitsons Engineering Co. (supra) following the decision in the case of 'Hotel Blue Moon' (supra) has held as under: - "Provision of section 143(2) makes it clear that service of notice u/s 143(2) within time limit prescribed is mandatory and it is not a mere procedural requirement. Therefore, th....