TaxTMI 
TaxTMI 
2026 (4) TMI 50
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....esaid impugned appellate order dated 28.11.2023 of the Ld. CIT(A). The grounds of appeal are as under: - "1. Because on the facts and in the circumstances of the case the order of Ld. CIT(A) as also Assessment is bad in law and deserves to be quashed being illegal. 2. Because on the facts and in the circumstances of the case the order of Ld. CTT(A) is bad in law in making addition U/s 69 without considering the submission of the assessee hence liable to be deleted. 3. Because on the facts and in the circumstances of the case the order of Ld. CIT(A) is bad in law since the Ld. AO illegally applied provisions of the amended section 56(2) (vii)(b) even before the amendment by The Finance Act 2013 to the assessee as section 56(2)(vii)(b) is not applicable to the assessee at the time of purchase of property in the FY 2013-14. 4. Because on the facts and in the circumstances of the case the order of Ld. CTT(A) is bad in law as the Assessing Officer has wrongly invoke the provision of Section 56(2)(vii) (b) of the Act and in sustaining the addition to the returned income of the Assessee and has further failed to mandatorily refer the valuation of the pr....
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.... a valid scrutiny assessment. In the absence of issuance and service of this notice, the Assessing Officer did not acquire lawful jurisdiction over the case, and the entire assessment is rendered void ab initio, having been completed in violation of principles of natural justice and statutory mandate." (C) In the course of appellate proceedings in Income Tax Appellate Tribunal (ITAT), an application for admission of additional evidence was also received from the assessee's side, along with affidavit in support of request for admission of additional evidence. (D) At the time of hearing, the Ld. Authorized Representative for the assessee submitted that the additional ground [referred to in foregoing paragraph (B.1) of this order] be taken up first. He submitted that the assessee was not issued notice u/s 143(2) of the Act, which was statutory requirement before passing the assessment order. He also contended that since the statutory requirement of issue of notice u/s 143(2) of the Act was mandatory; and since it was not complied with by the AO, the assessment order dated 19.03.2022 should be annulled. In this regard, he placed reliance on the order of the Hon'ble High Court of ....
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....e the assessee having filed return on 16.03.2022 in response to notice u/s 148 of the Act was not curable. He further contended strongly that requirement of issuance and service of notice u/s 143(2) of the Act before passing assessment order (on 19.03.2022 in this case) could not be dispensed with; and that failure on the part of the Assessing Officer to do so, was fatal to the assessment made. (E) We have heard both sides. We have perused the materials on record. It is not in dispute that the assessee filed return of income on 16.03.2022, in responses to the notice dated 30.03.2021 issued u/s 148 of the Act. It is also not in dispute that the assessee intimated the Assessing Officer on 17.03.2022 that the assessee had filed aforesaid return on 16.03.2022. It is further not in dispute that in the aforesaid assessment order dated 19.03.2022, the AO has specifically admitted having received the aforesaid communication from the assessee on 17.03.2022. It is further not in dispute that the AO failed to invoke his power to pass an ex parte assessment order (best judgment order) u/s 144 of the Act after expiry of 30 days from the notice u/s 148 of I. T. Act, but before the assessee fi....
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....lternatively, if the assessee delays the filing of return, the Assessing Officer would be justified, until the assessee filed return, to pass an ex parte (Best Judgment) assessment order u/s 144 of the Act. Once the assessee files return, the Assessing Officer cannot proceed to make assessment order to the detriment of the assessee, by disturbing the income returned by the assessee, without issuing and serving notice u/s 143(2) of the Act. This view taken by us is consistent with a number of strong precedents; including order of Co-ordinate Bench of ITAT Lucknow in the case ACIT vs M/s. Wave Enterprises in ITA. No.629/LKW/2019 order dated 17.06.2021, order of Hon'ble Jurisdictional High Court in the case of CIT vs Rajeev Sharma (2010) 192 Taxman 197/(2011) 336 ITR 678 (Allahabad), order of Hon'ble Patna High Court in the case of CIT vs Nagendra Prasad (2023) 156 taxmann.com 19 (Patna), order of Hon'ble Delhi High Court in the case of Shaily Juneja vs ACIT (2024) 167 taxmann.com 90/(2025) 476 ITR 665 (Delhi), order of Hon'ble Rajasthan High Court in the case of PCIT vs Kamla Devi Sharma (2018) 96 taxmann.com 659 (Rajasthan), order of Hon'ble Madras High Court in the case Sapthagiri ....
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....D.R., challenging the order under appeal, has contended that the Ld. CIT(A) erred in quashing the assessment, as non-issuance of notice u/s 143(2) is only a procedural irregularity on the basis of which assessment cannot be annulled, as discussed in 'M/s Areva T & D India Ltd. Vs. ACIT (Chennai)' and 'Jai Prakash Singh', 1996 AIR 1303, 1996 SCC (3) 525; that the Ld. CIT(A) erred in quashing the assessment without considering the fact that the basic requirement of section 143(2) has been fulfilled in this case, as in the notice issued u/s 142(1) dated 22.12.2016, the assessee was clearly asked to provide details of all related documents in support of its income tax return; that the Ld. CIT(A) failed to appreciate that no specific format has been prescribed for notice u/s 143(2) in the l.T. Act and I.T. Rules and as per the I.T. Act, only the basic requirement of providing an opportunity to produce any evidence, on which the assessee relies in support of the return, is to be fulfilled; and that the Ld. CIT(A) failed to appreciate that as per section 292BB of the Act, no assessment shall be invalid merely by reason of any mistake, defect or omission in such assessment if s....
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....ons and has also taken into consideration the judgment of the Apex Court and relying on the said judgments, the ITAT has held that notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under Section 148. Under these circumstances, no case is made out for interfering with the Tax Appeals No.7712012 and 7812012 since no substantial question of law is raised in both the appeals." The Kerala High Court in the case of Travancore Diagnostics (P.) Ltd., ACIT [74 taxmann.com 239] held as under:- "It is virtually admitted by the Revenue that no notice under section 143(2) had been issued. It is settled position of law that omission on the part of the Assessing Officer under section 143(2) cannot be a procedural irregularity and that the same is, not curable and that therefore, the requirement of notice under section 143(2) cannot be dispensed with. This emphatic statement of law, in the absence of issuance of a notice under section 143(2) by the revenue, would, therefore, inure to the benefit of the assessee, even though as noticed above, the conte....
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....des a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the 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 292 BB 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 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under Section 143 (3) ....
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....and service of notice u/s. 143(2) of the Act the reassessment made by the Assessing Officer u/s. 143 r.w.s. 147 of the Act dated 30.12.2016 for the Assessment Year 2009-10 became null and void. Accordingly the Assessment Order passed u/s. 143 r.ws. 147 of the Act, is quashed as bad in law." 7. In the case of 'CIT vs. Laxman Das Khandelwal' 108 Taxmann.com 183 (SC), it has, inter alia, been held by the Hon'ble Supreme Court that a complete absence of notice under section 143(2) of the Act does not get cured even by section 292BB of the Act; that for section 292BB of the Act to apply, a notice under section 143(2) must have emanated from the Page 8 of 11 Department and it is only infirmities in manner of service of notice that section 292BB of the Act seeks to cur-e and it is not intended to cure complete absence of notice itself. It was held that the law on the point as regards applicability of the requirement of notice under section 143(2) of the Act is quite clear from the decision in 'ACIT vs. Hotel Blue Moon' [2010] 321 ITR 362(SC), wherein it was held that notice under section 143(2) of the Act would be mandatory for the purpose of making assessment under section 1....
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....07.2023, this Court considered the issue and held against the Revenue. 7. We find that the question of law has to be answered in favour of the assessee and against the revenue. Hotel Blue Moon (supra) governs the issue which has been followed in Chand Bihari Agrawal (supra). 8. The Miscellaneous Appeal stands dismissed." (E.1.1 ) In the case of Sapthagiri Finance & Investments vs ITO (supra), the Hon'ble Madras High Court held "In completing the assessment under section 148, compliance of the procedure laid down under sections 142 and 143(2) is mandatory. It is admitted fact that except issuing a notice under section 142(1), no notice was issued assessee in not disclosing the capital gains arising on the transfer of property for assessment and that the assessee had requested the officer to accept the original return as a return filed in response to section 148, it was to be held that there was total failure on the part of the revenue from complying with the procedure laid down under section 143(2), which is mandatory one. Although on merits, the contention of the assessee that the capital gains would not be assessable at the hands of the firm cannot be accepted....
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....lly informed as to his right and with full knowledge of such right, he intentionally abandons it. There is nothing on record to show or one could read from the letter written by the assessee dated 18.12.2002 that the assessee abandoned such right of a notice under Section 143(2) of the Act. In the light of the above, we reject the Tribunal's reasoning. 12. As far as the contention of the Revenue that failure to issue notice under Section 143(2) of the Act is only curable defect is concerned, the decision relied on by the assessee reported in Hotel Blue Moon's case (supra), also covers the said issue. It is no doubt true that the said decision dealt with the assessment done under Chapter XIV relating to block assessment. The assessee therein raised a contention that the failure to issue notice under Section 143(2) within the prescribed time for the purpose of block assessment could be fatal to the validity of the assessment made under Chapter XIVB of the Income Tax Act, 1961. In other words, the assessee contended that the issuance of notice under Section 143(2) within the prescribed period of time for the purpose of block assessment is mandatory for assessing the a....
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....ion 142 and 143 (2) and (3) of the Act. 13. As far as the present case is concerned, the provisions of Section 148 also uses the expression "so far as may be apply accordingly as if such return were a return required to be furnished under Section 139". Thus, understanding this provisions in the background of the decision of the Apex Court, on the facts available, we are of the view that in completing the assessment under Section 148 of the Act, compliance of the procedure laid down under Sections 142 and 143(2) is mandatory. On the admitted fact that beyond notice under Section 142(1), there was no notice issued under Section 143(2), and in the light of the fact that the very basis of the reassessment was the failure on the part of the assessee in not disclosing the capital gains arising on the transfer of property for assessment and that admittedly the assessee had requested the officer to accept the original return as a return filed in response to Section 148 of the Act, we hold that there was total failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is mandatory one as held by the Apex Court. 14.....
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.... Section 292 BB of the Act was inserted by the Finance Act, 2008 with effect from 1 April 2008. Section 292 BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the 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 292 BB 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 292 BB of the Act cannot obviate the requiremen....
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....notice issued u/s 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver of right of notice to be issued u/s 143(2) of the Act." 18. As already noticed, the decision of this Court in CIT v. Vision Inc. proceeded on a different set of facts. In 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 insofar as failure of "service" of notice was concerned and not with regard to failure to "issue" notice. In other words, the failure of the AO, in re-assessment 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 AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th December 2010 when the ....
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....he chronology of the events are as under: -on 31.05.2013 notice u/s 148 was issued and served upon assessee on 06.06.2013; -on 03.04.2014, notice u/s 142(1) was issued fixing date of hearing on 16.04.2014; - on 22.04.2014, Return of Income was filed by assessee; - on 30.04.2014, further Query letter u/s 142(1) as well as show cause notice u/s 271(1)(b) was issued; - notices u/s 142(1) were issued on 17.11.2014 and 06.02.2015 and the proceedings were attended by the A/R of the assessee from time to time - Assessment order was passed u/s 143(3)/ 147 of the Act by Ld. AO vide order dated 05.03.2015. From the perusal of the summary of chronological events it is clearly evident that notice u/s 143(2) was never issued by ld.AO before completion of the assessment and this fact has categorically been admitted by ld.AO in remand report submitted before the ld. CIT(A) (APB 15-18). With this background of chronological events, kind attention of Hon'ble bench is invited to the provisions of section 148 of the Act, which reads as under: 148. [(1)] Before making the assessment, reassessment or re-computation under s....
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....efore ld.CIT(A) who sought remand report from ld. AO in this regard. The ld. AO in remand report dated 12/02/2016 at page 2 in last para observed that: (APB -17) "During the assessment proceedings in this case for the assessment year under consideration, the assessee or her authorized representative did not oppose that the notice u/s 143(2) of the income Tax Act, 1961 was not issued after filing return of income in response to the notice u/s 148 of the Income Tax Act, 1961. Therefore, under the provisions of Income Tax Act, 1961, the notice u/s 148 can't be issued......... Ld. CIT(A) confirmed the validity of assessment order so passed without issue of notice u/s 143(2) by observing that assessee had attended the hearing on several occasions and no objection was raised during the proceedings before the ld. AO, thus non issuance of notice u/s 143(2) of the Act would not make assessment order invalid. Ld. CIT(A) further held that such mistake of ld. AO of non issue of notice u/s 143(2) is curable u/s 292BB of the Act. At this juncture, provisions of section 292BB of the Act are reproduced herewith for the sake of convenience: 292BB. Where an assess....
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....62 (SC) (Case laws Paper book pages 93-99) Search and Seizure - Undisclosed Income Detected - Block Assessment - Issue of Notice u/s 143(2) within prescribed time - Mandatory - Income Tax Act, 1961, ss. 132, 143(2), 158BA, 158BC, 158BH - CBDT Circular No. 717 Dated 14.08.1995. Though in the above case, assessment was completed by ld.AO u/s 153A, without issuing notice u/s 143(2), the same is applicable to assessments completed under Act, irrespective of the fact under which section assessment is to be completed as legislature has provided for issuance of such notice before completion of assessment under whatever section it may be. CIT v. Salarpur Cold Storage (P.) Ltd. [2014] 50 taxmann.com 105 (All) "10. Section 292BB of the Act was inserted by the Finance Act, 2008 with effect from April 1, 2008. Section 292BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be www.taxguru.in (7 of 13) [ITA-197/2018] served on the a....
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.... It is further submitted that even if the return of income was filed after the issue of notice u/s 142(1), the Hon'ble Delhi court in the case of PCIT-08 vs. Shri Jai Shiv Shankar traders Pvt. Ltd. reported in 383 ITR 448 - (Delhi) (Case laws Paper book pages 29-31) has held that the issue of notice u/s 143(2) is not a procedural requirement and is mandatory and completion of assessment without issue of notice u/s 143(2) is fatal to the assessment. In this case, notice u/s 148 was issued on 30.03.2010, in response to which no return of income was filed. On 01.10.2010, Ld.AO issued notice u/s 143(2), which was duly served. Subsequently notices u/s 142(1) were also issued on certain occasions. Authorized representative of assessee, on 16.12.2010 presented and stated that return of income filed u/s 139 may be treated as furnished in response to notice u/s 148. Assessment was completed vide order dated 31.12.2010, in that situation also, the Hon'ble Court held that AO ought to have issued notice after 16.12.2010, in absence of which assessment was held invalid. In our case also, the return was filed after the issue of notice u/s 142(1), thus is squarely covered by the decisio....
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....ts earlier return filed as one filed in response to the notice issued under section 148 of the Act and the Officer had also noted that the same would be considered for completing of assessment, would show that the Assessing Officer has the duty of issuing the notice under section 143(3) to lead on to the passing of the assessment. In the circumstances, with no notice issued under section 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver of right of notice to be issued under section 143(2) of the Act." Recently Jaipur bench of ITAT in the case of Cameron (Singapore) Pte Ltd Vs. ADIT in ITA No. 2/JP/14 vide orders dt. 27/7/2017 held that where notice u/s 143(2) is not served upon the assessee within the stipulated time period, the consequent order passed cannot be sustained. In that case though the notice u/s 143(2) was issued but the same was not served upon the assessee within the www.taxguru.in stipulated time period however, in our case the notice u/s 143(2) was never served upon the assessee. The Hon'ble ITAT Delhi bench in the case of DR. S.B. KALIDHAR Vs. ITO in ITA No. 1082/Del/2016 da....
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....of the IT Act, three results can follow. Assessing Officer can either say no, this will not be accepted, you have to file a fresh return or he can say that 30 days time period being over I will not take cognizance of your request or he has to accept the request of the assessee and treat the earlier returns as one filed pursuant to the notice u/s 148 of the IT Act. In the former two scenarios, AO has to follow the procedure set out for a best of judgment assessment and cannot make an assessment under section 143(3). On the other hand, if the AO chose to accept assessee's request, he can indeed make an assessment under section 143(3). In the case before us, assessments were completed under section 143(3) read with section 147. Or in other words AO accepted the request of the assessee. This in turn makes it obligatory to issue notice u/s 143(2) after the request by the assessee to treat his earlier return as filed in pursuance to notices u/s 148 of the IT Act was received. This request, in the given case, has been made only on 05- 10-2010. Any issue of notice prior to that date cannot be treated as a notice on a return jiled by the assessee pursuant to a notice u/s 148 of the Act.....
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....ementioned decisions of the Allahabad High Court. That provision would apply insofar as failure of "service" of notice was concerned and not with regard to failure to "issue" notice. In other words, the failure of the AO, in re-assessment 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. (Para 18) The resultant position was that as far as the present case was concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act, was fatal to the order of reassessment. (Para 19) Consequently, there was no legal infirmity in the impugned order of the ITAT. No substantial question of law arises. The appeal was dismissed." (Para 20) Thus, the facts of the assessee's case are similar to the facts of the case involved in the decision of the Hon'ble Delhi High Court wherein it has been categorically held that the issue of not....
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....proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (¿) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the....
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....y the assessee is actually scrutinised by the Assessing Officer." (E.1.8) In the case of ITO vs Ashish Gupta (ITA. No.560/Del/2024), the Delhi Bench of ITAT, in a recent order dated 30.06.2025, has once again decided the issue in favour of the assessee and against the Revenue by holding as under: - "5. It is not in dispute that no notice under section 143(2) of the Act was ever issued to the assessee in the reassessment proceedings. It is also not in dispute that reasons recorded for reopening the assessment were also not furnished by the Learned AO to the assessee despite making a specific request in that regard. The only shield of the revenue is that the return filed by the assessee in response to notice under section 148 of the Act on 25-05-2021 was not everified and accordingly the Learned AO had treated the return as non-est. Since the return was treated as non-est, the stand of the revenue is that there was no requirement for the Learned AO to either issue notice under section 143(2) of the Act or furnish the reasons recorded for reopening the assessment. But we find from the final page of the assessment order, the Learned AO had started the computation of income ....
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....d omission to serve notice was not curable and after that review of issuance cannot be dispensed with in re-assessment proceedings u/s 147 read with section 148 of the Act; and approved the quashing of the assessment order. In this case also, return was filed after stipulated time of 30 days, in response to notice u/s 148 of I. T. Act. Hon'ble High Court has taken similar view in the case of CIT vs Laxman Das Khandelwal (supra). (D.2) The reliance placed by the Ld. Departmental Representative on GKN Driveshafts (India) Ltd (supra) is misplaced. Firstly, the facts are distinguishable. In the case of GKN Driveshafts (India) Ltd (supra), the Assessing Officer had issued notice u/s 143(2) of the Act whereas in the present case before us, notice u/s 143(2) of the Act has not been issued by the Assessing Officer. Secondly, in the case of GKN Driveshafts (India) Ltd (supra), there is no whisper at all as to whether issue of notice u/s 143(2) of the Act in re-assessment proceedings u/s 147 read with section 148 of the Act as to mandatory income of issue of notice u/s 143(2) of the Act. The order of Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd (supra) is an entirely d....
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....had been filed, it was mandatory on the part of the Assessing Officer to issue notice u/s 143(2) of the Act, if for any reason, the Assessing Officer intended to proceed in repudiation of return filed by the assessee in response to the notice u/s 148 of the Act, or to pass assessment order to the detriment to the assessee. We further hold that once the assessee has filed the return, in response to the notice u/s 148 of the Act, even beyond time prescribed in notice u/s 148 of the Act, the Assessing Officer was required to issue notice u/s 143(2) of the Act. Accordingly, in the facts and circumstances of the present case, and having regard to applicable law and decided precedents as discussed above, the impugned appellate order dated 28.11.2023 of Ld. CIT(A) is set aside, and the aforesaid assessment order dated 19.03.2022 passed by the Assessing Officer, is hereby annulled. (E) As the assessment order has been already annulled in the foregoing paragraph (D.2.1) of this order, the other grounds of appeal are merely academic in nature and need not be decided. Therefore, we decline to express any view on the other grounds of appeal. (F) In the result, the appeal of the assessee ....