TaxTMI 
TaxTMI 
2021 (5) TMI 524
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....he same is without jurisdiction and fit to be quashed. This fact emerges from the order passed by Ld. CIT itself." 3. According to the Ld. AR, the impugned order of the Ld. Pr. CIT is bad in law since the re-assessment order passed by the AO u/s. 147/143 of the Act which he [PCIT] intended to interfere was itself without jurisdiction and, therefore, null in the eyes of law and since the AO's order itself is null in the eyes of law, meaning non-est in the eyes of law, consequently the Ld. Pr. CIT could not have interfered by exercising his power u/s. 263 of the Act to again resurrect the non-est order. Since it is a pure legal issue we note that the same can be challenged before us at any stage as held by the Hon'ble Supreme Court in the case of NTPC Vs. CIT 229 ITR 383 (SC). In order to buttress his challenge raised on the aforesaid legal issue, the Ld. AR drew our attention to the finding of the Ld. Pr. CIT at page 3 of the impugned order wherein the Ld. Pr. CIT has recorded a finding as under: "1. ... 2. The order was passed u/s. 143(3)/147 on 18.09.2017, but no notice u/s. 143(2) was issued by the officer against the return filed in response to notice u/s. 148 on 19....
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....e AO dated 25.07.2017 is null in the eyes of law. 7. The Ld. CIT, DR has contended that since the assessee has participated in the reassessment proceeding which culminated in the order dated 25.07.2017, section 292BB comes to the rescue of the AO to pass the order. We do not agree to the aforesaid submission of the Ld. DR, since section 292BB is only safeguarding the deficiency if any of the service/non-service of notice and it does not cure the omission of issuance of mandatory notice by the AO And since in this case, the AO has not issued the mandatory notice u/s. 143(2) of the Act as found by the Ld. Pr. CIT, the question of section 292BB coming to the rescue of the AO to pass the reassessment order does not arise. For this we rely on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Laxman Das Khandelwal, Civil Appeal Nos. 6261-6262 of 2019 dated 13.08.2019 wherein the Hon'ble Supreme Court has taken care of the similar plea of the department and repelled the same by holding as under: "3. The relevant facts leading to the filing of aforementioned Income Tax Appeal No. 97 of 2018 before the High Court, as culled out from the judgment and order dated 27.....
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....statutory requirement as per the provisions of the Act and non issuance thereof is not a curable defect. Even in case of block assessment u/s. 158BC, it has been so held by the apex Court in the case of 'ACIT v. Hotel Blue Moon' (2010) 321 ITR 362 (Supra)." 4. In said appeal arising from the decision of the Income Tax Appellate Tribunal ('the Tribunal', for short), the issue that arose before the High Court was the effect of absence of notice under Section 143(2) of the Income Tax Act, 1961 ('the Act', for short). The Respondent-Assessee relied upon the decision of this Court in Assistant Commissioner of Income Tax and Another vs. Hotel Blue Moon. On the other hand, reliance was placed by the Appellant on the provisions of Section 292BB of the Act to submit that the Respondent having participated in the proceedings, the defect, if any, stood completely cured. 5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue Moon's case the first question was whether notice under Section 143(2) would be mandatory for the purpose of making the assessment under Section 143(3) of the Act. It was observed:-"3.....
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....ub-sections (2) and (3) of Section 143." 6. The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to the following effect:- "292BB. Notice deemed to be valid in certain circumstances. - Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) Not served upon him; or (b) Not served upon him in time; or (c) Served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the ass....