TaxTMI 
TaxTMI 
2024 (1) TMI 999
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 Act upon the assessee was not complied with. Thus, the Hon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment 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 original return be treated as fresh return---Reassessment proceedings completed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 be taken by the Revenue to section 292BH to give a go-bye to mandatory requirement of issuance of notice within the statutory f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lying 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 in Para 38 of the order observed as under:- "Thus, we are of the clear view that where the assessing officer is not inclined to accept the return of undisclos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 of right of notice to be issued u/s 143(2) of the Act." 5.10 The interplay of Sections 143 (2) and 148 of the Act formed the subject matter of at least two decisions of the ....