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| The Tax Publishers2020 TaxPub(DT) 1379 (Ahd-Trib) INCOME TAX ACT, 1961
Section 147
Since non-issuance of notice under section 143(2) was not a procedural irregularity, the same could not be cured under section 292BB and hence, the assessment order passed without issuance of notice under section 143(2) would be rendered invalid.
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Reassessment - Validity - No statutory notice under section 143(2) issued upon assessee -
AO framed assessment under section 143(3) read with section 147. Assessee-company challenged the validity of the said assessment contending that the same was invalid as statutory notice under section 143(2) was not issued upon it. However, CIT (A) observed that the assessee appeared during the assessment proceedings and raised no objection before the AO regarding the issuance of notice under section 143(2). Accordingly, the CIT (A) was of the view that the assessment proceedings under section 143(3) read with section 147 could not be held as invalid in pursuance to the provisions of section 292BB. Held: AO was under statutory obligation to issue notice under section 143(2) for making assessment or reassessment as the case might be, but he failed to do so. Accordingly, the order framed under section 143(3) read with section 147 became invalid. Further, the provisions of section 292BB deal with the situation where notice is not served or not served on time or served in a improper manner viz-a-viz the assessee does not raise objection before the completion of the assessment. As such, the provision of section 292BB do does not deal with the issuance of notice. In instant case, the issue was whether the assessment framed under section 147/143(3) was valid without issuance of the mandatory notice under section 143(2). Accordingly, the provision of section 292BB would not extend any benefit to the Revenue. Hence, in absence of the statutory notice, the assessment framed under section 143(3)/147 would not be sustainable.
REFERRED : R. Dalmia & Anr. v. CIT (1999) 236 ITR 480 (SC) : 1999 TaxPub(DT) 1165 (SC) The Pr. CIT-1 v. Marck Biosciences Ltd. (2019) 106 Taxmann.com 399 (Guj) : 2019 TaxPub(DT) 2620 (Guj-HC) CIT-III v. Panorama Builders (P) Ltd. (2014) 45 taxmann.com 159 (Guj) : 2014 TaxPub(DT) 2390 (Guj-HC) Lally Jacob v. ITO & Ors. (1992) 197 ITR 439 (Ker) : 1992 TaxPub(DT) 1249 (Ker-HC) Raj Kumar Chawla. v. ITO. (2005) 145 Taxman 12 (Del) : 2005 TaxPub(DT) 1289 (Del-Trib)
FAVOUR : In assessee's favour
A.Y. : 2008-2009
IN THE ITAT, AHMEDABAD BENCH
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