TaxTMI 
TaxTMI 
2025 (11) TMI 1988
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....'ble Supreme Court in the case of Hotel Blue Moon which was in the context of assessment u/s 158BC of the Income-tax Act, 1961 [the Act, for short] whereas in the instant case, the same does not apply as the case is reopening u/s 148 of the Act. 3. Briefly stated, the facts of the case are that the assessee was a non-filer and it's case was reopened u/s 148 of the Act vide notice dated 29.03.2018. The return in response to notice u/s 148 of the Act was filed on 11.09.2018 declaring an income of Rs 58,92,107/- which was processed u/s 143(1). The Assessing Officer framed assessment u/s 143(3) r.w.s 147 of the Act on 14.12.2018 at Rs 2,48,73,357/-. 4. The issue for adjudication before us is as to whether the assessment made u/s 143(3....
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....n response to notice u/s 148 of the Act was filed on 11.09.2018. The RoI was processed u/s 143(1) at Rs 58,92,107/-. The Assessing Officer made an addition of Rs 1,89,81,250/- and ultimately framed the assessment u/s 143(3) r.w.s 147 of the Act on 14.12.2018 at Rs 2,48,73,357/-. It is also an admitted fact that the notice u/s 143(2) was not issued in the instant case. 8. The legal requirement of issuance of notice u/s 143(2) was established by the hon'ble Supreme Court in the case of Hotel Blue Moon (supra) where the return filed is necessary to be checked and for framing order u/s 143(3) r.w.s 147 of the Act. We find that the decision of Hon'ble Jurisdictional High Court of Delhi in the case of Dart Infrabuild [supra] is squarely ap....
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....ion advanced on behalf of the appellant/revenue that, while it could consider the invalid return while framing the assessment order, it was not obliged to issue a notice under Section 143(2) of the Act because it was not filed within the timeframe given in the Section 148 notice is untenable in law, since the ROI, which was belated, was considered by the AO while carrying out the assessment. 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 Commissioner of Income-tax v. Shri Jai Shiv Shankar Traders (P.) Ltd. (2015) 64 taxmann.co....
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....terial on record and after being satisfied with regard to escaped liability, shall serve notice specifying particulars of such claim. In view of the above, after receipt of return in response to notice under section 148, it shall be mandatory for the Assessing Officer to serve a notice under sub-section (2) of Section 143 assigning reason therein . . .in absence of any notice issued under sub-section (2) of section 143 after receipt of fresh return submitted by the assessee in response to notice under section 148, the, entire procedure adopted for escaped assessment, shall not be valid. 15. In a subsequent judgment in CIT v. Salarpur Cold Storage (P.) Ltd. [2014] 50 taxmann.com 105 (All), it was held as under: 10.....
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....lf 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 reope....
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....er of right of notice to be issued u/s 143(2) of the Act." 18. As already noticed, the decision of this Court in Vision Inc. (supra) 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 t....