TaxTMI 
TaxTMI 
2024 (4) TMI 1072
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....i, pertaining to assessment year 2014-15. 2. At the very outset, learned counsel appearing for the assessee drew our attention to ground nos. 3 & 3.1 and submitted that the issue raised therein, being a purely legal and jurisdictional issue going to the root of the matter, should be taken up for adjudication at the first instance. 3. Learned Departmental Representative agreed with the aforesaid submission of the assessee. It is observed, in ground nos. 3 & 3.1 the assessee has challenged the validity of the assessment order dated 30.12.2016 passed under section 143(3) of the Income-tax Act, 1961 (in short 'the Act'). 4. Before we proceed to decide this issue, it is necessary to narrate the relevant facts. The assessee is a resident....
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....decide the additional ground raised by the assessee challenging the validity of the assessment order. 6. Before us, learned counsel appearing for the assessee submitted that the notice issued under section 143(2) of the Act is invalid, as, it was issued prior to filing of return of income by the assessee. He submitted, a valid notice under section 143(2) of the Act being a sine qua non for a valid assessment order under section 143(2) of the Act, any lapse in issuing a valid notice under section 143(2) of the Act will render the assessment order invalid. He submitted, assumption of jurisdiction to make assessment under section 143(3) of the Act is entirely based on the notice issued under section 143(2) of the Act and any invalidity in t....
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....sidered rival submissions in the light of judicial precedents relied upon and perused the materials on record. So far as the primary facts are concerned, there is no dispute that for the impugned assessment year, the assessee had filed its return of income on 26.12.2016. Whereas, as per the observations of the Assessing Officer in the body of the assessment order, notice under section 143(2) of the Act was issued to the assessee on 23.09.2015. Thus, it is established on record that notice under section 143(2) of the Act was issued and served on the assessee prior to the filing of the return of income by the assessee. 9. At this stage, it will be necessary to look into the provisions of section 143 of the Act. On a careful reading of the ....
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.... 23.09.2015, there was no return of income filed by the assessee either under section 139, or in response to notice issued under section 142(1) of the Act. Therefore, there was no occasion for the Assessing Officer to issue notice under section 143(2) of the Act in absence of a return of income. More so, when assessee's case was selected under manual scrutiny, which presupposes that the Assessing Officer must have examined all the facts and materials available on record. Therefore, the very initiation of assessment proceedings under section 143(3) of the Act, suffers from serious jurisdictional error and infirmity. 12. Before us, learned Departmental Representative has made an attempt to make out a case in favour of the Department by sub....
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....ing that the notice was validly served on the assessee. Therefore, the Hon'ble High Court upheld the decision of the Tribunal. In case of Josh Builders & Developers (P.) Ltd. Vs. PCIT (supra), the facts are quite similar as the Tribunal recorded a finding of fact that notice under section 143(2) of the Act was validly served on the assessee and the assessee without any objection participated in the assessment proceedings. Therefore, any defect in the notice was cured under section 292BB of the Act. 16. However, facts are completely different in the present case, as, the notice issued under section 143(2) of the Act was prior to filing of return of income by the assessee, at which point of time, the provisions of section 143(2) of the Act....