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TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1474
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.... the Ld. Sr. DR had submitted a report from the jurisdictional A.O, wherein the A.O has mentioned that since the return filed by the assessee was invalid, therefore, there was no occasion for issuance of notice u/s. 143(2) of the Act to the assessee. That on perusal of the records, it transpires that the assessee had duly filed return in response to notice u/s. 148 of the Act, dated 03.08.2021, thereafter, the A.O had issued notices u/s. 142(1) of the Act on three occasions viz. 15.11.2021, 18.11.2021 and 21.12.2021 and one show cause notice on 27.03.2022. In all these notices that were issued by the A.O, he had not mentioned anywhere that the return filed was invalid and because of such invalid return, he cannot issue notice u/s. 143(2) of the Act to the assessee. 5. The issue involved in the present appeal is no more res-integra for the fact that assessment in the case of the assessee was completed u/s. 147 r.w.s. 144 r.w.s. 144B of the Act, and in respect thereof several judicial pronouncements, have held that the issuance of notice u/s.143(2) of the Act is "sine-qua-non" for completion of assessment u/s.143(3)/144 of the Act. The objective of these decisions pertains to the ....
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....ucial before taking a particular decision. In Maneka Gandhi Vs. Union of India (1978) AIR 597 (SC) it has been held by the Hon'ble Apex Court that an order in violation to the principles of natural justice shall be quashed. There needs to be harmony between the administrative procedure and natural justice. 7. Reverting to the facts of the present case before me the Revenue has completed re-assessment u/s. 147/144/144B of the Act without issuing notice u/s.143(2) of the Act without informing the assessee that since return was invalid issuance of notice u/s. 143(2) of the Act cannot be done in spite of sending several notices u/s. 142(1) of the Act which I have examined in foregoing paras and all such notices are silent regarding the said fact. The best judgment assessment is therefore questionable and vitiated wherein the mandatory statutory notice has not been issued to the assessee and therefore proper opportunity was not provided to the assessee in terms with principles of natural justice as per the afore-stated binding judgments. Therefore, it is not open for the A.O to proceed against the assessee u/s. 144 of the Act without issuance of notice u/s. 143(2) of the Act. 8. A....
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....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 which the assessee informed the Assessing Officer that the return originally filed should be treated as the return filed pursuant to the noti....
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....g 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 Allahabad High Court noticed that the decision of the Supreme Court in Asst. CIT v. Hotel Blue Moon' where in relation to block assessme....
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....) 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 pertinent to note that the decision in Ashok Chaddha was also pressed into aid by the Revenue in Commissioner of Income-Tax vs. De....
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.... 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 Act." 13. Consequently, and in light of the above, we find ourselves unable to sustain the submissions addressed by Mr....