TaxTMI 
TaxTMI 
2021 (8) TMI 162
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....3(2) is enclosed along with that questionnaire, therefore, there was also issuance and service of the notice u/s 143(2) along with the questionnaire? (2) "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in annulling the order passed u/s. 143(3) r.w.s. 147 of the I. T. Act after noting that the notice u/s 143(2) is not found on record inspite of the fact that there is mention in the questionnaire dated 28.08.2012, issued and served upon the assessee, that the notice u/s 143(2) is enclosed, which is duly noted in the order-sheet by AO on 28.08.2012?" (3) "On the facts and in the circumstances of the case and in law, the Ld. C1T(A) has erred in annulling the order passed u/s. 143(3) r.w.s. 147 of the I. T. Act after noting that the notice u/s 143(2) is not found on record inspite of the fact that there is mention in the questionnaire dated 28.08.2012, issued and served upon the assessee, that the notices u/s 143(2) and 142(1) are enclosed along with that questionnaire and notice u/s 142(1) is also found on record and same is responded by the assessee during the proceedings vide letter dated 14.12.2012?" (4) "On the facts and in the circumst....
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....note the facts at the assessment stage to this extent only. Aggrieved by the assessment so framed under section 143(3) r.w.s. 147, assessee carried the matter in appeal before the CIT(A). The assessee raised a grievance, though by way of an additional ground of appeal, that "the learned Assessing Officer erred in commencing and subsequently completing the reassessment proceedings, without issuing a notice under section 143(2) and the said proceedings are therefore bad in law and deserve to be quashed". Adjudicating on this grievance of the assessee, learned CIT(A) upheld the said plea and observed, inter alia, as follows: 6.3.1 I have considered the submissions of the appellant and perused the materials available on record. The appellant has requested to hold the impugned reassessment order u/s 143(3) rws 147 of the Act as bad in law and hence quash the same. The appellant has submitted that the Ld. AO has erred in commencing and subsequently completing the reassessment without issuing the mandatory notice u/s 143(2) of the Act. In support of it's said claim the appellant has relied on various judicial pronouncements. 6.3.2 The DCIT, Central- 6(2), Mumbai, the Ld. AO, vide he....
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....the said defect is not curable u/s.292BB of the Act. The Hon'ble ITAT Chandigarh in the case of Sanjeev Aggarwal, vs. DCIT while adjudicating similar issue, vide its order dated 25.05.2016 in ITA Nos. 102, 103, 169, & 170 (CHD) of 2016 has held as under. "We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. From the order of the learned CIT (Appeals), we observe that there is no quarrel to the fact that in the present case notice under section 143(2) of the Act was not issued to the assessee. The fact of issuing notice under section 143(2) of the Act is also not coming out from the order of the Assessing Officer. This fact has not been controverted by the learned D.R. even before us. In view of this, since the learned CIT (Appeals) dismissed the ground of the assessee on the basis of provisions of section 292BB of the Act, the only issue remaining before us is to decide whether in the absence of issue of notice under section 143(2] of the Act. The assessment framed under section 147 r.w.s. 143(3) of the Act is valid in the background of provisions of section 292BB of the A....
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....income under the said section. We would like to observe the substantive part of provisions of section 148, which reads as under ; "[Issue of notice where income has escaped assessment. 148 [(1)] Before making the assessment reassessment or recompilation under section 147, the Assessing Officer 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 or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall so far as may be, apply accordingly as if such return were a return required to be furnished under section 139:]" 10. From the perusal of the above provisions, it is quite clear that the Assessing Officer has to issue and serve a notice under section 148 of the Act to the assessee before making assessment under section 147 of the Act. The notice under section 148 of the Act requires the assessee to furnish his return of income, ....
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....6th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act, is fatal to the order of reassessment. 20. Consequently, there is no legal infirmity in the impugned order of the ITAT. No substantial question of law arises. The appeal is dismissed." 6.3.4 The legal position, as discussed above, that without issuing mandatory notice u/s 143(2) of the Act, the Assessing Officer cannot assume jurisdiction to compete reassessment u/s 143(3) rws 147 of the Act is no more re-integra as the Hon'ble Bombay High Court has settled the same. The Hon'ble Bombay High court in the case of ACIT vs. Geno Pharmaceuticals Ltd, reported in 32 taxmann.com 162 has held as under. "4. So far as Tax Appeals No.77/2012 and 78/2012 are concerned, in both these appeals, the ITAT has held that the issuance of notice after reopening of the case was mandatory and this order is under challenge.- It is contended that the said order is contrary to the provisions of Sections 292BB which was introduced by the Finance Act 2008 w.e.f. 01.04.2008, in which it is stated that in a ....
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....he Assessing Officer, if the period has expired not to issue notice after that period.., In other words, the Assessing Officer is bound to accept the return as filed. Though the notice under section 16(2) may be procedural the proviso is not merely procedural but is in the nature of a limitation on the power of the Assessing Officer not to proceed further in a case where return has been filed under section 14 or under section 15. That will have to read as applicable to a case of reassessment under section 17. 14. Let us now examine sections 143 and 148 of the provisions of the income-tax Act, where similar language had been employed. Under section 143(2) (II), there is a limitation on the Assessing Officer not to issue notice if the period of twelve months had expired. Section 148 of the Income-tax Act had come up for consideration before several High Courts. A learned Bench of the Madras High Court in CIT v. M. Chellappan [2006] 281 ITR 444 had occasion to consider the provision. The Assessing Officer proceeded fo reassess under section 147 of the Income-tax Act and completed the assessment without issuing notice under section 143(2] within the time stipulated. The order was con....
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....pose of making an order of reassessment will have to be followed which will include the time-limit for notice under section 16(2). Once the language of section 17 itself requires that other provisions to the extent applicable would apply considering the return as filed under section 14, it contemplates that both procedural and substantive provisions will apply. In our opinion, therefore, while invoking the powers under section 17, the Assessing Officer is bound by the mandate of the proviso to section 16(2) and on failure the order of reassessment will be without jurisdiction and consequently the order of reassessment will have to be set aside. 17. Having said so, we are clearly of the opinion that no error of law can be found with the view taken by the Tribunal. Consequently, the appeal is dismissed." 6.3.5 In view of the above discussion, it is evident that it is mandatory to issue notice u/s 143(2) of the Act before completing the re-assessment u/s 143(3) rws 147 of the Act in pursuance of notice issued u/s 148 of the Act and hence non issuance of such mandatory notice u/s 143(2) of the Act is fatal and the Ld. AO will not have any jurisdiction to complete the reassessment u....
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....nable merits. A plain look at the proceeding sheet before the Assessing Officer shows that, according to the said proceeding sheet, the notice under section 143(2) and 142(1) is issued immediately upon issuance of notice under section 147 (sic- 148) on 29th March 2012, and the entry immediately following the entry of issuance notices is the entry dated 27th April 2012 which records filing of letter by the assessee to the effect that the income tax return filed by the assessee may be treated as return in response to notice- a fact corroborated by the facts set out in the assessment order as well. Quite clearly, therefore, there was no return, filed in response to notice under section 148, before the Assessing Officer at the point of time when notice under section 143(2) was issued. Such a notice thus can not be relevant for the reassessment proceedings in question. There is no other reference to issuance of the notice under section 143(2) on the proceedings sheet. There is a reference to issuance of a questionnaire, which is rectified as a 'letter' by striking off the word questionnaire, on 28th August 2012. As for the learned Departmental Representative's contention that the notice....