2011 (7) TMI 527 - HC - Income Tax

Reopening of assessment - whether non-issuance of notice u/s 143(2) would render the proceedings for re-assessment null and void - Held that - It is not disputed that the assessee had appeared before the AO on various dates and participated in the reassessment proceedings before the finalization and no objection regarding issuance and service of notice under Section 143(2) was raised before the AO - CIT(A) and the Tribunal were, thus, in error in nullifying the re-assessment proceedings and declaring the re-assessment order to be invalid - substantial question of law is answered in favour of the Revenue.

Summary

Issues:
1. Validity of re-assessment proceedings without notice under Section 143(2) of the Income-Tax Act, 1961.

Analysis:
The case involved an appeal under Section 260A of the Income-Tax Act, 1961, filed by the revenue against an order passed by the Income Tax Appellate Tribunal relating to the assessment year 2002-03. The main issue raised was whether the re-assessment made without issuing a notice under Section 143(2) of the Act was valid. The facts revealed that the assessee had made unexplained deposits, leading to re-assessment proceedings initiated in response to which the assessee participated without objecting to the absence of notice under Section 143(2). The Commissioner of Income-tax (Appeals) annulled the re-assessment, declaring it void for lack of the said notice. The Tribunal upheld this decision, prompting the revenue's appeal.

The revenue contended that the notice under Section 148 was duly served, and the assessee participated in the re-assessment proceedings without raising any objection regarding the absence of notice under Section 143(2). The revenue cited a judgment of the Kerala High Court and Section 292BB of the Act to support the argument that non-service of notice under Section 143(2) did not invalidate the re-assessment proceedings. The Court acknowledged the precedents cited and noted the presumption under Section 292BB regarding service of notice in assessment or reassessment proceedings.

The Court found merit in the revenue's submission, emphasizing that the assessee had cooperated in the re-assessment proceedings without raising any objection about the notice under Section 143(2). Referring to the applicability of Section 292BB to pending proceedings from 1st April 2008, the Court held that the re-assessment order was not invalid due to the absence of the said notice. Consequently, the substantial question of law was answered in favor of the revenue, and the matter was remanded to the Tribunal for a fresh decision on merits in accordance with the law.

In conclusion, the Court's judgment clarified that the non-issuance of a notice under Section 143(2) did not render the re-assessment proceedings null and void, especially when the assessee participated in the proceedings without raising any objection. The Court's decision highlighted the significance of cooperation in assessment or reassessment proceedings and the applicability of Section 292BB to validate the service of notices.