TaxTMI 
TaxTMI 
2021 (10) TMI 262
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....t 1(3), New Delhi. Ld. Assessing Officer reopened the case by issuing notice u/s 148 of the Act. The assessee alleged to have taken accommodation entry at Rs. 35,00,000/- from the Jain Brothers. Notice u/s 142(1) of the Act was issued saising various queries which were replied by the assessee. However, Ld. Assessing Officer completed the assessment making additions of Rs. 36,00,000/- and assessing the income at Rs. 5,72,180/-. 3. Aggrieved assessee preferred an appeal before the Ld. CIT(A) and partly succeeded. 4. Now the assessee is in appeal before this tribunal raising following grounds of appeal: "1. The Ld. CIT(A) has erred in law and facts of the case by not considering all the points which were put before him in the written submission made by the assessee. 2. That the Ld.CIT(A) erred on facts of the case and confirmed the reopening of case u/s 147/148. This action of AO and further confirmed by CIT(A) is totally wrong, arbitrary and illegal under the facts of the case. 3. That the Ld. CIT(A) erred on facts of the case and confirmed the addition of Rs. 35,00,000/- on account of alleged bogus accommodation entries which is totally wrong, arbitr....
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.... orders of the lower authorities could not controvert the fact that statutory u/s 143(2) of the Act was not issued to the assessee. Sufficient opportunity was provided to the Ld. DR on various dates of hearing to verify from the case records that whether the notice u/s 143(2) of the Act was issued before commencing reassessment proceedings. However, no such evidence was placed on record. 10. We have heard rival contentions and perused the records placed before us and carefully gone through the judgments referred and relied by the Ld. counsel for the assessee. Though, the assessee has raised other ground we will first take the legal issue raised through the additional ground of appeal challenging the validity of reassessment proceedings, for non-issuance of statutory notice u/s 143(2) of the Act. 11. So far as the admission of legal ground is concerned, after perusing the judgment of Hon'ble Apex Court in the case of National Thermal Power Co. Ltd. vs. CIT (1992) 229 ITR 383, judgment of Hon'ble Jurisdictional High Court in the case of CIT vs. Eicher Motors Ltd. (2007) 293 ITR 464 and the judgment in the case of DCIT vs. Turquoise Investment & Finance Ltd. (2008) 299 I....
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....nder Section 143(3) of the Act. It was observed:- "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the following two questions of law were raised for consideration and decision of the High Court, they were: "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income Tax Act, 1961 within the prescribed time- limit for the purpose of making the assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income Tax (Appeals), the additions made under Section 68 of the Income Tax Act, 1961 should be deleted or set aside?" 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub-sections (2) and (3) of Section 143 will have mandatory application in a case where the assessing officer in repudiation of return fil....
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....2BB 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 assessee would be precluded from taking any objections 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. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Blue Moon's case2. The issue that however needs to be consider....