TaxTMI 
TaxTMI 
2022 (12) TMI 405
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....s as well as storage and transportation terminals. 2. This common order disposes two Writ Petitions, one raising a duel challenge, to a notice under Section 148 of the Act dated 12.12.2019 and an order dated 23.07.2021 rejecting the objections of the petitioner in regard to assumption of jurisdiction for re-assessment under Section 147 of the Act, and the other, a notice dated 24.11.2020, issued by the Transfer Pricing Officer (TPO)/R2. 3. The sequence of dates and events leading to the cause of action agitated in these Writ Petitions is as follows: i) The proceedings relate to assessment year (AY) 2016-17. In the financial year relevant to that year, the petitioner had sought and obtained a Nil tax withholding certificate in respect of certain amounts that it had received from Indian Oil Corporation Limited and Indian Oil LNG Private Limited for providing project management consultancy services. ii) A return of income had been filed by the petitioner in time, duly accompanied by relevant financials. iii) The return was not processed under regular provisions; instead, on 12.12.2019 it received a notice under Section 148, in compliance of which a ret....
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....ine of 6 months from the end of the financial year in which the return was furnished, for the issue of notice under Section 143(2), or 6 months from 31.03.2020, being 30.09.2020. The Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (in short 'TOLA Act') extends the aforesaid timelines to 31.03.2021. xiv) However, no notice under Section 143(2) had been received at the time when the Writ Petition was filed, which is on 22.09.2021, long past the expiry of limitation. This, according to Mr.Nishanth Thakkar, learned counsel for the petitioner, vitiates the proceedings fatally, as a consequence of which, the impugned notice under Sections 148, the order disposing the objections to assumption of jurisdiction and the subsequent reference to the TPO are all liable to be set aside as being bad in law. 4. The specific argument is that assumption of jurisdiction by an officer commences with, and is triggered by, the issuance of a notice under Section 143(2) and failure to do so, would compromise the proceedings fatally. 5. The petitioner relies on several decisions in support of its submissions, being: (i) Assistant Commissioner of Inc....
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....imeline does not arise. 8. I may straightaway state that this is a distinction without a difference, since the consequence of a notice issued beyond 6 months and one not issued at all, even beyond the period of 6 months, is one and the same. To put it simply, if no notice is issued within 6 months, the revenue must face the consequences of this, irrespective of whether a notice has been issued belatedly or no notice has been issued at all. 9. She relies on a decision of this Court in the case of B.Kubendran v. Deputy Commissioner of Income Tax, Central Circle 2(1), Chennai (434 ITR 161) rendered in the context of the new scheme of block assessment under Sections 153A and 153C of the Act. Therein, this Court has noted a distinction between the erstwhile scheme of block assessment under Chapter XIV B and the presently prevailing scheme of block assessment, concluding that the new scheme does not require the issuance of a notice under Section 143(2) to kick start the assessment. 10. The framing of a regular assessment/re-assessment is triggered by the issue of a statutory notice under Section 143(2) of the Act, which constitutes a pre-condition for the assumption of jurisdict....
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.... Asstt. CIT v. Hotel Blue Moon [2010] 321 ITR 362/188 Taxman 113 holding that completion of the assessment proceedings under Section 143(3) read with 147 without issue of notice under Section 143(2) was bad in law, this Court held that when there was failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, the assessment had to fail. 13. In the above case, the Court records at paragraph 6 that no notice was issued under Section 143(2) of the Act, which is a position analogous to that in the present matter. 14. The Delhi High Court in Shri Jai Shiv Shankar Traders (P) Ltd. (supra) has answered this issue along identical lines as in the above decisions, stating at paragraph 19 as follows: 19. The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th 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. 15. The decision of t....
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....d come to be filed by the assessee (Review Petition No.441 of 2011) and by order dated 17.08.2011, the Delhi High Court rectified the error noticing that that question had not been admitted in the first place and hence there had been a mistake apparent on record by the subsequent Bench considering that question on merits, even sans admission. 21. Thus, this point also stands clarified and with that, there is complete uniformity in the conclusion of Courts on the issue as to whether non-issue of notice under Section 143(2) would vitiate the assessment, answering the issue in the affirmative. 22. CBDT Instruction No.3 of 2003 elucidates upon and explains the provisions relating to Transfer Pricing, as contained in Sections 92 and 92F of the Act that had come into force, with effect from assessment year 2002-03 onwards. 23. The Circular reinforces the position that it is sine qua non for the Assessing Officer to assume jurisdiction prior to taking any steps in the matter of assessment, including reference of the matter to the TPO. The jurisdiction assumed by an officer in terms of Section 120 of the Act is activated by issuance of notice under Section 143(2), and as a consequ....