TaxTMI 
TaxTMI 
2025 (3) TMI 870
X X X X Extracts X X X X
X X X X Extracts X X X X
....f ground no.1. 04. The facts in brief are that the assessee filed the return of income on 31.10.2018, declaring total income of Rs. 1,93,89,490/-. A search u/s 132 of the Act was carried out by the investigation Wing on various places of finance brokers on 30.11.2018. During the course of enquires of the Investigation wing, it was revealed that the assessee was engaged in dubious financial transactions with Anil Kumar Kesara, finance brokers Sanwaria & Kasera to the tune of Rs. 28,15,00,000/-. During the financial year 2017-18, the investigation wing found that the said broker was engaged in arranging cash loans to the interested parties in lieu of commission and the beneficiary of finance brokers were identified on the basis of analysis of Rukkas, Data available in public domain, market information, statements recorded and explanation provided by the broker. Accordingly, the proceeding u/s 147 of the Act were initiated after following the procedure as provided u/s 148 of the Act. The notice u/s 148 of the Act was issued to the assessee on 23.03.2022. The assessee complied with the said notices vide letter dated 25.03.2022, submitting therein that the return of income filed on 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case of Hotel Blue Moon ACIT v. Hotel Blue Moon [(2010] 321 ITR 362 (SC). The assessee also placed reliance on the judgments of various courts in his submission. The case laws cited by the assessee have been perused. 7.2.3. The undisputed fact of the case of the present assessee is that notice u/s 143(2) was issued by the AO on 16.1.2023 whereas the assessee filed a letter dated 25.3.2022 stating that return filed u/s 139 be treated as return filed u/s 148. The notice u/s 143(2) should have been issued on or before 30.09.2022, the due date which the AO has failed to adhere to. 7.2.4. However, this is not a case where the AO has failed to issue notice u/s 143(2). In the case laws cited by the assessee, the facts in most of the cases were that the AO has totally failed to issue notice u/s 143(2). Whereas in this case, notice u/s 143(2) was issued but not within time. Thus, the facts of the case as stated by the assessee in the case laws cited by him are different from the case of the present assessee. The issue of notice u/s 143(2) has been distinctly dealt with in the recent judgment of the Hon'ble Supreme Court in the case of CIT Vs Laxman Das Khandelwal [201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owever, to be noted that the Section does not save complete absence of notice. For Section 2928B to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure The Section is not intended to cure complete absence of notice itself 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct We, therefore, see no reason to take a different view in the matter 11. These Appeals are, therefore, dismissed. No costs." 7.2.5. Thus, in the judgment delivered by the Hon'ble SC, the manifest interpretation is that section 292BB would cure defect if assessee has participated in the proceedings and notice u/s 143(2) would be valid if it has been issued during the assessment proceedings. The judgment sought to make invalid notice u/s 143(2) only in the event of complete absence of notice u/s 143(2). Here, in this case, notice was issued and it is not a case of non issue of notice u/s 143(2). Thus, the case laws especi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld if the notice emanated from the department then the only service of notice is taken care of by the provisions of Section 292BB of the Act and not the delay issuance of notice after the timeline provided under the first proviso to Section 143(2) of the Act. Therefore, the finding of the ld. CIT (A) are completely misplaced and require to be reversed. 07. The ld DR on the other hand relied on the order of ld CIT(A) on this and submitted that the delay in issuing notice is taken care of by nthe provisions of section 292BB of the Act and therefore the legal ground raised by the assessee may be dismissed. 08. We have heard the rival contentions and perused the materials on records as placed before us. Undisputedly the notice u/s 143(2) was issued after the time line as mentioned in the first proviso to section 143(2) of the Act. The facts qua the notice u.s 143(2) are already discussed above and are not being repeated again. The ld DR candidly admitted that the notice was issued late by the AO however that would not render the proceedings as invalid as the infirmirites in the issue of notice would be taken care of by the provisions of section 292BB of the Act. In our opinion, t....