2022 (10) TMI 843

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....speed post at the address provided in the AIR information. In compliance, assessee did not furnish any reply about the capital gains arising on sale of immovable property. Since the assessee could not furnish any reply, therefore, proceedings under section 147 of the I.T. Act, 1961 has been initiated by the A.O. with the prior approval of the Principal Commissioner of Income Tax, Ghaziabad and the A.O. issued notice under section 148 of the I.T. Act, 1961 dated 30.03.2017. Since, there was no compliance to the said notice, the A.O. issued statutory notices under section 142(1) of the I. T. Act, 1961 dated 15.05.2017, dated 06.10.2017 along with questionnaire. However, the assessee has not made any compliance of the statutory notices sent to him. Therefore, the A.O. issued show cause notice under section 144 of the I. T. Act, 1961 dated 17.11.2017 fixing the case for hearing on 28.11.2017. On 01.12.2017 the Authorised Representative of the Assessee attended and requested for adjournment and the case was adjourned to 06.12.2017. On 06.12.2017, the Authorised Representative of the Assessee filed his written submission. Since the A.O. noted that the details furnished by the assessee ar....

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.... section 143(2) of the Act, and hence, the assessment framed is bad in law and liable to be annulled. 3. That on the facts and circumstances of the case and in law, the assessment reopened by the Ld. AO and as confirmed by Ld. CIT(A) lacks mandatory conditions prescribed under section 147 of the Act, thereby, leading to invalid jurisdiction and illegal reassessment being made which is liable to be quashed. 4. That the Ld. CIT(A) erred on facts and in law in enhancing the income of the appellant to 1NR 46,55,000 by ignoring the submissions and explanations furnished by the appellant, while treating the transaction as short term capital gain on sale of property. 5. That on the facts and in circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the fact that there arises no capital gain chargeable to tax on the sale of property as per the provisions of the Act. 6. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not accepting the documents submitted as additional evidence by the appellant under Rule 46A of Income Tax Rules, 1962 (the Rules) during the course of appellate proceedings substant....

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.... it is stated that notice under section 143(2) of the I.T. Act, 1961 has not been served by the A.O. upon the assessee. The Learned Counsel for the Assessee, accordingly, prayed that the assessment framed by the A.O. under section 143(3)/147 of the I.T. Act, 1961 in absence of issuance and serving of notice upon the assessee under section 143(2) be annulled as the authorities below violated the principles of natural justice of providing adequate opportunity of being heard the assessee. In support of this contention, the Learned Counsel for the Assessee relied upon the decision of Coordinate Bench of Delhi Tribunal in the case of Flovel Energy Pvt. Ltd., New Delhi vs., ACIT, Circle-9(1), New Delhi in ITA.No.6485/Del./2019 order dated 29.11.2019 which is placed at pages 68 to 78 of the paper book. 5. On the other hand, Ld. D.R. heavily relied on the orders of the authorities below and prayed that the order of the Ld. CIT(A) be confirmed. 6. I have heard the rival submissions of both the parties and perused the material available on record. In the instant case, in the grounds of appeal, the Learned Counsel for the Assessee has put-forth his arguments mainly on the ground of annu....

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....ed on 09.01.2015. Under such circumstances, it is incumbent upon the Assessing Officer to issue notice u/s 143(2) within the time stipulated as per the provisions of the Act which he failed to observe. Hence, keeping in view the judgment o f Jurisdictional High Court in the case of Alpine Electronics Asia Pvt. Ltd. 341 ITR 247 wherein the judgment of Hotel Blue Moon 321 ITR 362 (SC) has been duly referred to, we hereby hold that omission to issue notice u/s 143(2) is not curable and the requirement cannot be dispensed with. It is mandatory to issue notice u/s 143(2) even in the case of reassessment u/s 148. Similarly, Section 292BB incorporates the principle of estoppel and stipulates that an assessee who has appeared in any proceeding and co-operated in any enquiry relating to assessment or reassessment shall be deemed to be served with any notice which was required to be served and would be precluded from objecting that the notice was not served upon him or was served upon him in an improper manner or was not served upon him in time. However, the principle of estoppel does not apply if the assessee has raised objection in reply to the notice before completion of assessment or rea....