2011 (8) TMI 701 - HC - Income Tax

Notice under 143(2)(ii) when return filed under 148 - after expiry of one year from the date of return - Held That - In view of Hotel Blue Moon (2010 - TMI - 35251 - SUPREME COURT OF INDIA) notice under section 143(2) within the time prescribed is mandatory Omission to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable.

Issues:
1. Interpretation of proviso to Section 143(2)(ii) of the Income Tax Act.
2. Applicability of the proviso to cases where return filed in compliance with notice u/s 148.
3. Jurisdiction and procedural aspects of Section 143(2) of the Act.
4. Compliance with the time limit for issuing notice under Section 143(2).
5. Impact of delay in issuing notice under Section 143(2) on assessment proceedings.

Interpretation of Proviso to Section 143(2)(ii):
The High Court considered the appeal under Section 260-A of the Income Tax Act, challenging the judgment of the Income Tax Appellate Tribunal. The substantial question of law was whether the proviso to Section 143(2)(ii) is applicable when a return is filed in response to a notice under Section 148. The case involved an assessee deriving income from buses and gas tankers, who filed a return under section 139(1) and later received a notice under section 148. The assessing officer made additions, which were contested by the assessee on the grounds of the notice under Section 143(2) being issued beyond one year from the date of filing the return in response to the Section 148 notice.

Applicability of Proviso to Section 143(2) in Compliance Cases:
The Court analyzed the legal position of Section 143(2) of the Act, emphasizing that the assessing officer must issue a notice within 12 months from the end of the month in which the return was filed by the assessee. Referring to precedents such as the Hotel Blue Moon case, the Court held that the notice under Section 143(2) within the prescribed time is mandatory. It was established through legal precedents that the proviso to Section 143(2) applies to returns filed in response to notices under Section 148. Therefore, the assessing officer was obligated to issue the notice under Section 143(2) within the stipulated period, as failure to do so cannot be considered a procedural irregularity and is not curable.

Jurisdiction and Procedural Aspects of Section 143(2):
The Court differentiated between the jurisdictional and procedural aspects of Section 143(2) of the Act. It highlighted that once the assessing officer decides to proceed with the assessment, issuing a notice under Section 143(2) becomes essential to inform the assessee of the scrutiny assessment. The Court referred to legal precedents to support the mandatory nature of issuing the notice within the prescribed timeframe.

Compliance with Time Limit for Issuing Notice under Section 143(2):
Acknowledging that the notice under Section 143(2) in the present case was issued beyond one year from the date of filing the return, the Court emphasized that such an omission by the assessing officer cannot be considered a procedural irregularity. The Court reiterated that the requirement of issuing a notice under Section 143(2) within the specified period cannot be overlooked, as established in previous judgments.

Impact of Delay in Issuing Notice under Section 143(2) on Assessment Proceedings:
Ultimately, the Court upheld the Tribunal's order, stating that the notice under Section 143(2) was issued beyond the permissible time limit. It concluded that the delay in issuing the notice cannot be cured and that the requirement of such notice is mandatory. Consequently, the appeal was dismissed, ruling in favor of the assessee and against the revenue, based on the legal principles and precedents discussed in the judgment.

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