TaxTMI 
TaxTMI 
2023 (4) TMI 1331
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the AO in making an addition of Rs. 2,72,00,000/- being protective addition on account of cash received against booking of shops in Kunj Mall. 3. Any other ground which may be urged before or during the hearing of the appeal." 3. At the outset, the counsel for the assessee submitted that in the instant facts, the additions have been made in the hands of the assessee on "protective basis" and the "substantive additions" have been made in the hands of M/s Kunj infrastructure Private Limited. The counsel for the assessee drew our attention to the fact that the "substantive additions" in respect of the aforesaid income have been deleted in the hands of M/s Kunj Infrastructure Private Limited by ITAT Ahmedabad in the case of DCIT v. M/s Kunj infrastructure Private Limited in ITA numbers 1809- 1810/Ahd/2016 for assessment year 2008-09 vide order dated 22-10-2019. Accordingly, it was submitted before us that when "substantive additions" have been deleted by the ITAT in the hands of M/s Kunj Infrastructure Private Limited, the additions made on "protective basis" in the hands of assessee cannot be sustained and are therefore liable to be set aside. In response, DR placed reliance o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his disallowance was made on protective basis only and hence cannot be equated with the substantive disallowance. We have noted above about the validity and presumption of the protective assessment in general. Protective assessment cannot be independent of substantive assessment. Thus protective assessment is always successive to the substantive assessment. There may be a substantive assessment without any protective assessment but there cannot be any protective assessment without there being a substantive assessment. In simple words there has to be some substantive assessment/addition first which enables the AO to make a protective assessment/addition. Substantive addition/assessment is made in the hands of the person in whose hands the AO prima facie holds the opinion that the income is rightly taxable. Having done so and with a view to protect the interest of the Revenue, if the AO is not sure that the person in whose hands he had made the substantive addition rightly, he embarks upon the protective assessment. Thus the protective assessment is basically based on the doubt of the AO as distinct from his belief which is there is the substantive assessment." 4.4 In the case of G....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lhi HC judgment in case of MTNL vs. Chairman CBDT 246 ITR 173, Madras HC decision in case of Arvea T & D India ltd. vs. ACIT 294 ITR 233. 8.1 The ld. CIT-A after considering the submission of assessee and remand report, rejected the contention of the assessee and confirmed the order of the AO. 9. Being aggrieved by the order of the learned CIT (A), the assessee is in the CO before us. 10. The learned AR for the assessee before us reiterated the submissions as made before the learned CIT (A) whereas the learned DR vehemently supported the order of the authorities below. 11. We have heard the rival contentions of both the parties and perused the materials available on record. The provisions of section 148 of the Act states that the return filed in response to the notice issued under section 148 of the Act shall be subject to the provisions applicable to the return as furnished under section 139 of the Act. 11.1 Similarly, the provisions of section 143(2) of the Act mandates that, where a return has been furnished under section 139 of the Act or in response to the notice issued under section 142(1) of the Act, the AO if considers it necessary or expedient to ensure that....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Act. In the opinion of this Court, this section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of the present case, at the cost of repetition, it may be stated that no notice under section 143(2) of the Act has been issued after the assessee had filed its return of income and hence, section 292BB of the Act would not be attracted." 11.3 Thus, we note that the AO can acquire the jurisdiction for the assessment under section 147 of the Act only if the notice under section 143(2) was issued upon the assessee. In the absence of issuance of such notice, the proceedings initiated under section 147 of the Act are void-ab-initio. Such defect cannot be cured even under the provisions of section 292 BB of the Act. It is because the provision of section 292BB of the Act deals with the service of the notice. The relevant provision of section 292BB of the Act reads as under: "Wh....