TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 1080
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the following grounds: "1. GROUNDS OF APPEAL : 1. The ld CIT(A) erred in holding that the issue of notice u/s 148 rws 147 of the Act was valid in law. 1.i. In doing so, the ld.CIT (A) erred in not considering the judgement of the high courts including of the jurisdictional high court relied upon by the appellant which are on all four with the appellant's facts 2. The Id. CIT(A) erred in dismissing Gr No. 11 & Lii raised before him with regard to challenge to the assessment order for non-issue of notice u/s 143 (2) of the Act. 2.i In doing so, the ld. CIT(A) erred in relying on sec. 292 BB of the Act without appreciating that non-issue of notice u/s 143(2) of the Act is a jurisdictional defect which cannot be cured and in an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment proceedings were initiated in the case of the assessee on the basis of information received from DIT (Investigation), Ahmedabad, that during the financial year 2008-09 fictitious profits and losses have been created by misusing the client code modification facility in F&O segment on NSE by some brokers and the assessee is one of the beneficiaries of these fictitious profits and losses, which has been transferred to reduce its tax liability. Accordingly, notice under section 148 of the Act was issued to the assessee on 29/03/2016. In response thereto, the assessee requested that the return originally filed be treated as a return filed in response to notice under section 148 of the Act. The assessee also filed its objections against t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... issued under section 143(2) of the Act, by observing as under: "(ii) Notice u/s.143(2): 5.7 The assessee submitted that the order u/s. 143(3) r.w.s.147 of the I.T. Act was passed without issue of notice u/s 143(2). The assessee in its support contended that vide letter dated 22.12.2016 the assessee raised objection to this effect. For ready reference assessee's letter dated 22.12.2016 is enclosed as Annexure-A. 5.8 In this letter, on the 4th line assessee has mentioned as under "At the outset, we have to submit that proceedings pursuant to said notice is without the authority of law." The above objection of assessee is general in nature and most of the assesses use such language in their submissions. The same cannot be treat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Act in the case of the assessee as well as the additions made by the AO. Being aggrieved, the assessee is in appeal before us. 7. We have considered the rival submissions and perused the material available on record. It is the plea of the assessee that in the present case, the assessment under section 143(3) read with section 147 of the Act is null and void as no notice under section 143(2) of the Act was issued and served upon the assessee. In order to check the veracity of the contention of the assessee, time was granted to the Revenue to call for the assessment record and produce the copy of the notice issued under section 143(2) of the Act. During the hearing on 16/11/2022, the learned Departmental Representative ('learned DR') up....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessment proceedings and the consequent assessment order in view of section 292BB of the Act. 9. We find that a similar issue came up for consideration before the Hon'ble Supreme Court in CIT vs Laxman Das Khandelwal, [2019] 417 ITR 325 (SC), wherein the Hon'ble Supreme Court after noting the importance of issuance of notice under section 143(2) of the Act, as laid down in its earlier decision rendered in ACIT vs Hotel Blue Moon [2010] 321 ITR 362 (SC), held that for section 292BB to apply, section 143(2) notice must have emanated from the department and it is only infirmities in the manner of service of notice that the section seeks to cure and it is not intended to cure the complete absence of notice under section 143(2) of the Act itse....