TaxTMI 
TaxTMI 
2024 (9) TMI 1820
X X X X Extracts X X X X
X X X X Extracts X X X X
....ime, second notice u/s.148 of the Act was issued by the ITO-1(3), Raipur, dated 03.08.2018 for A.Y.2013-14 without having any order of transfer u/s.127 of the Act from the competent authority. 4. The second legal contention raised by the Ld. Counsel for the assessee is that though the reassessment was completed u/s.147 r.w.s 143(3) of the Act, however, there was no mandatory notice issued and served u/s.143(2) of the Act by the department to the assessee. It was submitted by the Ld. Counsel that the A.O had mentioned in the assessment order that notice u/s.143(2) of the Act was issued to the assessee on 12.10.2018 which was even prior to the filing of the return of income by the assessee which was on 17.11.2018 and the same constitutes a non-rectifiable defect going to the root of the matter rendering the entire reassessment proceedings invalid, bad in law and void ab initio. 5. Per contra, the Ld. Sr. DR submitted that mentioning of the date of issuance of notice as 12.10.2018, it was typographical error committed by the office of the A.O which can be rectified and thus, there is no inconsistency as per proceedings in the case of the assessee. However, she could not demonstr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ailable on record. On perusal of the record, it is noted that the department has failed to produce any proof as regards the service of notice u/s.143(2) of the Act. It is settled legal position that the issuance of notice u/s.143(2) is sine-qua-non for framing of reassessment order or an order of assessment u/s.143(3) of the Act. Further, the A.O specifically states in his report that no details of its service are available in the system. I am of the considered view that failure to issue and serve notice by the department u/s. 143(2) of the Act renders the reassessment order invalid, bad in law and void ab initio. 6. The Ld. Sr. DR could not place on record any evidence/document to refute these facts already on record. The Ld. Sr. DR has relied on the findings of the A.O wherein though issuance of notice has been referred to, however as per admission of the department, there is no evidence regarding service of the same and without any service, issuance of notice is meaningless for the reason that the concerned assessee still does not know that in the case he is supposed to be ready regarding the proceedings and what defence he should prepare in his case which is essential ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irement of notice under section 143(2) cannot be dispensed with." 8. Further, the Hon'ble High Court of Delhi in the case of Shaily Juneja Vs. ACIT, (2024) 167 taxmann.com 90 (Delhi) has dealt with the similar issue and held that issuance of notice u/s. 143(2) of the Act is mandatory in reassessment proceedings u/s. 147 of the Act. For the sake of completeness, the relevant observation of the aforesaid judgment are culled out as follows: 10. The aforesaid view came to be reiterated by the Court in Principal Commissioner of Income-Tax vs. Dart Infrabuild Pvt Ltd5, as would be evident from the following observations which appear in that decision:- "15.2 The absence of notice, under section 143(2), impregnates the proceedings with a jurisdictional defect and, hence, renders it invalid in the eyes of the law. This position is no longer res integra, as demonstrated by the observations made in Principal CIT v. Shri Jai Shiv Shankar Traders Pot. Ltd.1 (page 452 of 383 ITR): "12. The narration of facts as noted above by the court makes it clear that no notice under section 143(2) of the Act was issued to the assessee after December 16, 2010, the date on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e assessee, has been duly served upon him in time in accordance with the provisions of the Act. The assessee is precluded from taking any objection in any proceeding or enquiry that the notice was (i) not served upon him; or (ii) not served upon him in time; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to section 292BB of the Act, however, carves out an exception to the effect that the section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292BB of the Act cannot obviate the requirement or complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under section 143(3) of the Act, it is necessary to issue a notice under section 143(2) of the Act and in the absence of a notice under section 143(2) of the Act, the assumption of jurisdiction itself would be invalid.' 16. In the same decision in Salarpur Cold Storage (P.) Ltd. (supra), the Allahaba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n that case, there was a clear finding of the court that service of the notice had been effected on the assessee under section 143(2) of the Act. As already further noticed, the legal position regarding section 292BB has already been made explicit in the aforementioned decisions of the Allahabad High Court. That provision would apply in so far as failure of 'service‟ of notice was concerned and not with regard to failure to „issue‟ notice. In other words, the failure of the Assessing Officer, in reassessment proceedings, to issue notice under section 143(2) of the Act, prior to finalising the reassessment order, cannot be condoned by referring to section 292BB of the Act. 19. The resultant position is that as far as the present case is concerned the failure by the Assessing Officer to issue a notice to the assessee under section 143(2) of the Act subsequent to December 26, 2010 when the assessee made a statement before the Assessing Officer to the effect that the original return filed should be treated as a return pursuant to a notice under section 148 of the Act, is fatal to the order of reassessment." (emphasis is ours)" 11. It is also pert....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... v. Hotel Blue Moon: 321 ITR 362 (SC) and CIT v. Pawan Gupta: 318 ITR 322 (Del)) that whenever the return filed by an Assessee is not accepted at its face, it is mandatory for the AO has to issue a notice under Section 143(2) of the Act for proceeding further. It is thus not open for the AO to not issue a notice under Section 143(2) of the Act and proceed directly under Section 144 of the Act by rejecting the return filed by the Assessee. 10. The decision of this Court in Ashok Chaddha (supra) was rendered in the context of Section 153A of the Act and in our view, the same is not applicable in the present case. This Court in several cases pertaining to proceedings under Section 147 has held that a notice under Section 143(2) is mandatory. [See: Alpine Electronics Asia (P.) Ltd. v. DGIT: 341 ITR 247 (Del), DIT v. Society for Worldwide Interbank Financial Telecommunication: 323 ITR 249 (Del), Pr. CIT v Shri Jai Shiv Shankar Traders Pvt. Ltd.: 282 CTR 435 (Del) and CIT v. Rajeev Verma: 336 ITR (All)]. It is also relevant to note that clause (b) of the proviso to Section 148(1) of the Act also specifically extends the period for issuance of notice under Section 143(2) of the A....