AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 1342
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....issue of service of notice u/s.143(2)/148 of the Act as well on merits of the disallowances. 2. Learned Counsel for the assessee, at the outset submits that there is no valid service of notice u/s. 148 of the Act, as the notice was issued on a different address where the assessee was conducting business prior to the Assessment Year 2008-09. Learned Counsel for the assessee referring to page Nos. 11 to 18 which are the copies of acknowledgements of returns filed for the Assessment Years 2008-09 to 2014-15, submitted that the returns were filed before the Assessing Officer showing the new address i.e. 3A-3B, Prime Plaza, J. V. Patel Compound, B.S. Madhukar Road, Elphinstone (W), Mumbai. Learned Counsel for the assessee submits that the Asses....
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....ment. Therefore, the Learned Counsel for the assessee submits that since there was no proper service of notice u/s. 148/143(2) of the Act the assessment made by the Assessing Officer is null and void. 4. Ld.DR strongly supported the orders of the authorities below. Ld.DR further submits that in view of the provisions of section 292BB of the Act even if there is defect in service of notices, as the assessee participated and appeared in the proceedings before Assessing Officer, the Assessment Order cannot be said to be null and void. 5. We have heard the rival submissions, perused the orders of the authorities below and the case laws relied upon. Before coming to the merits of the addition/disallowance, the preliminary issue in this case is....
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....d the decision of the ACIT v. M/s. Hotel blue Moon [321 ITR 362] and held as under: - "Under clause (ii) of sub-section (2) of Section 143, the Assessing Officer is required to serve, on the assessee, a notice requiring him to attend the office or to produce evidence on which the assessee may rely in support of the return, if the Assessing Officer 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 the tax in any manner. Under the proviso to clause (ii), it has been specified that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. S....
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....o have been issued by 30 September 2009 which was the date of the expiry of the period of six months from the end of the financial year in which the return was furnished. A notice was, however, issued on 6 October 2009 much beyond the period of six months. In such a situation, there could be no occasion to serve the notice within six months since the very act of issuance was beyond six months. Now, it is in this background that it would be necessary to consider the provisions of Section 292 BB of the Act. Section 292 BB provides as follows: - "292 BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment. It shall be deemed that any notice under any provision of this A....
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....e 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. Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under Section 143 (3) of the Act, it is necessary to issue a notice under Section 143 (2) of the Act and in the absence of a notice under Section 143(2) of the Act, the assumption of jurisdiction itself would be invalid. This principle is no longer in doubt having due regard to the law laid down by the Supreme Court in the decision in Assistant Commissioner of Income Tax & Another Vs. M/S Hotel Bl....
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....n regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction under Section 292 BB of the Act. The fiction in Section 292 BB of the Act overcomes a procedural defect in regard to the non-service of a notice on the assessee, and obviates a challenge that the notice was either not served or that it was not served in time or that it was served in an improper manner, where the assessee has appeared in a proceeding or cooperated in an enquiry without raising an objection. Section 292 BB of the Act cannot come to the aid of the revenue in a situation where the issuance of a notice itself was not within the prescribed period, in which event the question of whether it was served correctly or otherwise, would b....