2020 (9) TMI 965

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..... 2. In both these appeals the assessee has taken a jurisdictional ground that, a notice u/s 143(2) of the Act was not issued/served on the assessee after filing of a return of income in pursuance to a notice issued u/s 148 of the Act. This Bench of the Tribunal has on last date of hearing i.e. on 06.08.2020 directed the ld. DR to produce or verify the assessment record for ascertaining the claim of the assessee that the statutory notice u/s 143(2) of the Act was not issued to the assessee for both the assessment years, before framing of assessment u/s 143(3) r.w.s. 148 of the Act. 3. On a query from the Bench, the ld. DR Smt. Ranu Biswas submitted that, on an examination of the assessment record for both the assessment years, she has obs....

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....t this issue of non-service of notice u/s 143(2) of the Act was never raised by the assessee, either before the AO or before the ld. CIT(A) and the assessee has participated in the assessment proceedings and under such circumstances he should not be allowed to raise this issue for the first time before the Tribunal. She further submits that hence this issue should be decided against the assessee and as the assessee did not argue all other grounds, they should also be decided against the assessee. 6. Rival contentions heard. On a careful consideration of the facts and circumstances of the case, perusal of the papers on record and case law cited, we hold as follows. 7. The admitted fact is that no notice u/s 143(2) of the Act was issued to ....

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....he production of evidence on such points on which the Assessing Officer may harbour doubts and are indicated in his notice under Section 143(2) of the Act. Section 143(3) of the Act contemplates an assessment undertaken by the Assessing Officer upon material being produced by the assessee on grounds which are indicated by the Assessing Officer in his notice under Section 143(2) of the Act in respect whereof the Assessing Officer may have misgivings or may disagree with the return filed by the assessee. Implicit in the wording of Section 143(3) of the Act is the indispensability of a notice under Section 143(2) thereof. Apropos the second question framed above, it is necessary that Section 292BB of the Act be noticed in its entirety: "....

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....here the assessing officer says that a notice had been issued and there is a contradiction thereof by the assessee. It is evident that the assessee carried the objection before the Commissioner (Appeals) and the Commissioner brushed aside the objection on the ground that it was a technicality without addressing the issue or applying his mind to such aspect of the matter. Further, it is evident from the order impugned passed by the Appellate Tribunal that no notice under Section 143(2) of the Act had, in fact, been issued in this case. In such a situation, where a notice that is mandatorily required to be issued is found not to have been issued, Section 292BB of the Act has no manner of operation. The two substantial questions of law are ....