TaxTMI 
TaxTMI 
2025 (5) TMI 2213
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....ome Tax (Appellate Tribunal) Rules, 1963 ("the Rules") to contend that the assessment order framed under s. 144 r.w.s. 147 r.w.s. 148 of the Act for the AY 2012-13 is nonest and bad in law at the threshold due to non-issuance of notice under s. 143(2) of the Act subsequent to issuance of notice under s. 148 of the Act. 4. At the time of hearing, the Ld. Counsel for the assessee referred to application made under Rule 27 of the Rules and submitted that it is an admitted position that while initiating re-assessment proceedings by issuance of notice under s. 148 of the Act for assumption of jurisdiction under s. 147 of the Act, no notice under s. 143(2) of the Act has been issued. This fact could also be verified. There is no mention of issuance of notice under s. 143(2) of the Act in para 2 of the assessment order where details of notices issued under s. 148 & 142(1) of the of the Act are tabulated. The issuance of notice under s. 143(2) is conspicuously absent. The 'Screenshot of e-proceedings portal' further supports the case made out towards non-issuance of mandatory notice under s. 143(2) of the Act. The notices issued for e-proceedings merely demonstrate notice issued under s....
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....behalf of the assessee in terms of application under Rule 27 of the Rules calls for primary in adjudication. As per the aforesaid application, it is the case of the assessee that the re-assessment order framed without issuance of notice under s. 143(2) is a nullity. The completion of assessment without issuance of jurisdictional notice under s. 143(2) is an incurable defect which vitiates the assessment and renders it invalid in law. 6.1. It will be apt to refer to the judgement rendered in the case of PCIT vs Dart Infrabuild (P.) Ltd. (supra) wherein the identical controversy has been addressed as extracted hereunder:- 13.2 "Since the objection was taken before the completion of the assessment/reassessment proceedings, in our opinion, the provision of Section 292BB would have no application. 14. Although we may note that submissions based on Section 292BB were not advanced on behalf of the appellant/revenue before the Tribunal, in our opinion, since it was a pure legal submission, that by itself, cannot come in the way of the appellant/revenue. However, in this case, the provision can have no applicability as the respondent/assessee objected to the notice unde....
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....43(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 notice under section 148 of the Act. 13. In DIT v. Society for Worldwide Interbank Financial Telecommunications [2010] 323 ITR 249 (Delhi), this court invalidated a reassessment proceeding after noting that the notice under section 143(2) of the Act was not issued to the assessee pursuant to the filing of the return. In other words, it was held mandatory to serve the notice under section 143(2) of the Act only after the return filed by the assessee is actually scrutinised by the Assessing Officer. 14. The interplay of sections 143 (2) and 148 of the Act formed the subject matter of at least two decisions of the Allahabad High Court in CIT v. Rajeev Sharma [2011] 336 ITR 678 (All) it was held that a plain reading of section 148 of the Act reveals that within the statutory period specified therein, it shall be incumbent to send a notice under section 143(2) of the Act. It was observed (page 687): "The provisions contained in sub-section (2) of....
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.... 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 Hotel Blue Moon (supra) where in relation to block assessment, the Supreme Court held that the requirement to issue notice under Section 143(2) was mandatory. It was not "a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with." 17. The Madras High Court held likewise in Sapthagiri Finance & Investments v. ITO [2012] 25 taxmann.com 341/210 Taxman 78 (Mad.) (Mag.). The facts of that case were that a notice under Section 148 of the Act was issued to the Assessee seeking to reopen the assessment for AY 2000-01. However, the Assessee did not file a return and therefore a notice was issued to it under Section 142 (1) of the Act. Pursuant thereto, the Assessee appeared before the AO and stated that the original return filed should be treated as a return filed in response to the notice under Section 148 of the Act. The High Court observed that if thereafter, the AO found that the....