TaxTMI 
TaxTMI 
2019 (3) TMI 1811
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.... order in this case for the assessment year 2008-09 (year under appeal) had already been made vide order dated 31.03.2011 passed under section 143(3) of the Act; b) the "reasons recorded" did not contain any mention of any failure of requisite type from the end of the appellant; c) accordingly, notice issued under section 148 dated 24.03.2015, after expiry of four years from the assessment year 2008-09 was hit by the proviso to section 147 the proceedings under section 147 were barred by limitation also and the assessment order dated 31.03.2016 passed in pursuance thereof was null and void. 2.2 BECAUSE limitation of four years [in the case where assessment had already been completed under section 143(3)] is not saved by the provision contained in section 149(1)(b) and the "CIT(A)" went wholly wrong in holding that notice under section 148 as had been issued on 24/3/2015 was within the time limit prescribed under the law. 3.1 BECAUSE assessment order dated 31.03.2016, as passed in pursuance of notice under section 148 dated 24.03.2015 was liable to be held as void ab-initio, for the reason that there was no issuance and service (on the appellant) of mandatory notice under se....
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....e income of the appellant on the basis of seized material referred to above. 6.2. BECAUSE there were no such sums recorded in the book of account superscribed as 'M/s ABC7 (seized material) which could go to show that the appellant was in receipt of on-money aggregating Rs. 30,96,27,426/- so as to call for an addition of the same in the income of the appellant. 7. BECAUSE in any case, and without any admission, it is stated that sums appearing in the said seized material showed an aggregate debit of Rs. 5,19,94,932 - against credits aggregating Rs. 4,27,72,728/-, resulting into a loss/outgoings of Rs. 92,22,204/- (Rs. 5,19,94,932 - Rs. 4,27,72,728) as per the seized material, which deserved to be lflowed as set off out of assessed income, instead of the additions as have been made in the sustained by the Authorities below. 8. BECAUSE the debit entry of Rs. 4,06,00,000/- (over and above the above mentioned debits/credits) could not have been treated to be an item of addition in the assessment of the appellant/ either on facts or in law, and more so for the reasons (a) that 'payer' of the same remained unidentified; and (b) the purpose, as had been inferred by t....
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.... to the aforesaid affidavit of the assessee. This has been placed in the appeal file. In the relevant para 3.2, the Department contends as under: "The contents of this ground are not correct. As per record, notice u/s 143(2) of the Act dated 05.02.2.016 was issued and served along with notice u/s 142(1) of the Act dated 05.02.2016. In compliance to the above said notices, the written submission along with enclosures/documents was furnished by the Deponent in the office of the Assessing Officer on 11.02.2016. Further, if it were so, the objection in this regards should have been raised during the course of assessment proceedings. But no such objections were raised by the Deponent during the course of assessment proceedings and accordingly provisions of section 292BB of the Act are applicable in this case." 6. Thus, in their reply, the Department states that notice dated 5/2/2016 was issued under section 143(2) to and served on the assessee along with notice dated 5/2/2016 under section 142(1) of the Act. 7. In view of the above position, we had summoned the record of the case. This record has been produced and it has been perused by us. We find from the record that out of the fo....
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....vs. Madhya Bharat Energy Corporation Ltd.' 337 ITR 389 (Del) and 'Areva T&D India Ltd. vs. ACIT' 294 ITR 233 (Mad). However, these decisions are no longer good law. 12. 'Madhya Bharat' (supra) was reviewed by the Hon'ble Delhi High Court in Review Petition No.441/2011, in ITA No.950/2008, vide order dated 17/8/2011, noting that at the time of admission of the appeal on 17/2/2011, after noticing that in the said case that no notice under section 143(2) had even been issued, the court held that no question of law arose on that aspect. These facts have also been noted in 'Pr. Commissioner of Income Tax vs. Shri Jai Shiv Shankar Traders Pvt. Ltd.', 383 ITR 448 (Del) (in para 9 of the judgment), as follows: "9. Dr. Rakesh Gupta, learned counsel appearing for the assessee, at the outset drew the attention of this court to an order passed by this court on August 17, 2011 in Review Petition No. 441 of 2011 in I. T. A. No. 950 of 2008 (CIT v. Madhya Bharat Energy Corporation) whereby this court reviewed its main judgment in the matter rendered on July 11, 2011 on the ground that the said appeal had not been admitted on the question concerning the mandatory compliance with the require....
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....t to Section 158BC(b) provided for determination of the undisclosed income of the block period in the manner laid down in Section 158BB and the provisions of section 142, sub sections (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be, apply. The Apex Court pointed out after return is filed, the Assessing Officer has to follow the procedure like the issue of notice under Section 143(2)/142 and complete the assessment under Section 143(3). In the event, the assessee is not filing the return or not complying with the notice under Section 143(2)/142, the Officer is authorised to complete the assessment ex parte under section 144. The Apex Court further pointed out that notice under Section 143(2) would become necessary only where the block return does not conform undisclosed income inferred by the authorities. Thus, if an assessment is to be completed under Section 143(3) read with Section 158BC, notice under Section 143(2) should be issued within one year from the date of filing of the block return. The Apex Court further held that omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and ....
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....." 15. The genesis of this dispute lies in section 148(1) of the Act, according to which, before making reassessment under section 147, the A.O shall serve on the assessee, a notice requiring him to furnish, within such period as may be specified in the notice, a return of his income for the relevant year and the provisions of the I.T. Act shall, so far as may be, apply accordingly, as if such return was a return required to be furnished u/s 139 of the Act. 16. Section 147 of the Act says that where the AO has reason to believe escapement of income from assessment, he may, subject to the provisions of sections 148 to 153, reassess such income. Thus, a case of reassessment is subject to, inter alia, section 148. Section 148(1) requires a notice to be issued for filing of return and it provides that the provisions of the Act shall, so far as may be, apply accordingly, as if, such return was a return required to be furnished u/s 139. This is where section 143(2) gets triggered. Section 143(2) mandates a notice to be issued to the assessee, to produce evidence on which the assessee may rely in support of his return. It is important to note that the opening words of section 143(2) are....