AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2024 (1) TMI 999
X X X X Extracts X X X X
X X X X Extracts X X X X
....cts and circumstances of case, the assessment order passed by the Ld. AO u/s. 147/143(3) of the IT Act, is without jurisdiction as the "reasons to believe" to reopen the assessment were not supplied to the assessee, despite being requested by the assessee. This is gross violation of the principle laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. v. DCIT (2003) 259 ITR 19 (SC). Thus, the Hon'ble CIT is not justified in confirming the order of the Ld. AO on this point. 2. That, on the facts and circumstances of case, the assessment order passed by the Ld. AO u/s. 147/143(3) of the IT Act, is in defiance of law, as the mandatory compliance of issuing and serving the notice u/s. 143(2) of the Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the assessee before completion of the assessment, then the assessment is not sustainable in the eyes of law and deserve to be cancelled as held by the various judgments of the Hon'ble Supreme Court, Hon'ble Jurisdictional High Court, other High Courts and Special Benches decision of the ITAT. The relevant portion of the various judgments of the Hon'ble Courts are reproduced as under:- 5.1 ACIT & Anr. vs. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)] Held: "It is mandatory for the AO to issue notice u/s 143 (2). The issuance and service of notice u/s 143 (2) is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid Reassessment-----Notice-----Assessee intimating or....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., despite the assessee not having raised any objection before the passing of the assessment order and despite the provisions of section 292BB of the Act? " Held: "In this case, Hon'ble High Court has held that section 292BB cures the defects in service of notice but section 292BB is 'confined to only service of notice under this Act and this section does not apply to 'Issuance of notice' under the provisions of Act. It does not lay down that if a mandatory notice is required to be issued by the assessing officer and it has not been issued within the period of limitation fixed under the law, then such notice shall be deemed to have been issued within time. It has been further held that resort cannot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iginal return as a return filed in response to Section 148 of the Act, we hold that there was total failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is mandatory one as held by the Apex Court." 5.7 Alpine Electronics Asia Pte Ltd. vs. DGIT & Ors: [(2012) 341 ITR 247 (Del) Held: "The service of notice u/s 143(2) within the statutory time limit is mandatory and is not an inconsequential procedural requirement. Omission to issue notice u/s 143 (2) is not curable and the requirement cannot be dispensed with. S. 143(2) is applicable to proceedings u/s 147 & 148." 5.8 CIT vs. Pawan Gupta & Ors. [(2009) 318 ITR 322 (Del) Hon'ble Delhi High Court held i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(2) of the Act was complied with or that on placing the objection the Assessee had waived the notice for further processing of the reassessment proceedings. The fact that on the notice issued u/s 143(2) of the Act, the assessee had placed its objection and reiterated its earlier return filed as one filed in response to the notice issued u/s 148 of the Act and the Officer had also noted that the same would be considered for completing of assessment, would show that the AO has the duty of issuing the notice under Section 143(3) to lead on to the passing of the assessment. In the circumstances, with no notice issued u/s 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esult in nullifying the assessment orders impugned before us. 7. We are also conscious about the provision of section 292BB of the Act. The said Section 292BB of the Act deals with (a) non service of notice (b) non service of notice in time (c) service of notice in an improper manner- but in the present case the issue is regarding non-issuance of notice itself and there is nothing on record to prove that the notice u/s 143(2) of the Act has been issued by the Assessing Officer. Therefore, in our considered opinion, the protection under section 292BB of the Act is not available to the Department in the case on hand. 8. Considering the fact that the Department has not produced any evidence to show that the notice u/s 143(2) of the Act h....