The Tax Publishers2021 TaxPub(DT) 5835 (Hyd-Trib)

INCOME TAX ACT, 1961

Section 147

Where notice under section 143(2) was not issued then re-assessment notice was liable to be quashed. Further, the issue regarding non-issuance of notice under section 143(2) can be raised at any stage of proceedings being a legal ground.

Reassessment - Section 143(2) notice not issued by the AO - Validity of reassessment -

Assessee had filed the appeal seeking to raise a legal ground that assessment itself was invalid in law since framed in absence of a valid section 143(2) notice issued by AO. Revenue had vehemently contended that the same was not liable to be admitted since giving a new texture to already raised pleadings.Held: AO had himself filed a remand report inter alia making it clear that he had issued 148 notice followed by the assessee's submission seeking to treat the original return filed as the one in response to re-opening only. AO further stated that it had issued only section 142(1) thus, a section 143(2) notice was not required in the entire re-assessment process. Apex court in Asstt. CIT v. Hotel Blue Moon (2010) 321 ITR 362 (SC) : 2010 TaxPub(DT) 1434 (SC) held that section 143(2) notice had to be mandatorily issued before framing an assessment. Thus, re-assessment frame was non est in law.

Followed:Asstt. CIT & Anr. v. Hotel Blue Moon (2010) 321 ITR 362 (SC) : 2010 TaxPub(DT) 1434 (SC), National Thermal Power Company Limited v. CIT (1998) 229 ITR 383) (SC) : 1998 TaxPub(DT) 342 (SC) and Pr. CIT-08 v. Shri Jai Shiv Shankar Traders (P) Ltd. (2015) 383 ITR 448 (Del-HC) : 2015 TaxPub(DT) 4975 (Del-HC).

REFERRED :

FAVOUR : In assessee's favour.

A.Y. : 2008-09



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