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2013 (9) TMI 332 - AT - Income TaxReassessment proceedings - Defect in service of notice u/s 143(2) Validity of Assesment as per Section 292BB - irregularity curable u/s 292BB - Whether the CIT(A) was right in holding that in absence of issuance of notice u/s 143(2), the assessment was null and void not appreciating provisions u/s 292BB Held that - Notice was not served within the stipulated time. Mere giving of dispatch number will not render the said finding to be perverse. In absence of notice being served, the Assessing Officer had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under Section 292 BB of the Act - Following CIT v. Cebon India Ltd 2009 (7) TMI 26 - PUNJAB AND HARYANA HIGH COURT - It was held in this case that absence of notice is not curable defect under s. 292BB of the IT Act - the objection of the Revenue is not maintainable - Therefore, the learned CIT(A) was justified in setting aside the entire assessment order. Section 292BB has been inserted by Finance Act, 2008, has no retrospective effect and is to be construed prospectively - The provision of s. 292BB of the IT Act would not apply in the case of the assessee - Further, no notice under s. 143(2) has been issued or served upon the assessee - The assessment order under appeal is 2001-02 - Therefore, the provision of s. 292BB of the IT Act would not apply in the case of the assessee - Further, no notice under s. 143(2) has been issued or served upon the assessee. Reopening of Assessment u/s 148 -Disallowance of various heads like unexplained investment, loans raised and unexplained capital - when entire reassessment order has been set aside and quashed by the learned CIT(A) and confirmed - rest of the grounds in the Departmental appeal regarding reopening of assessment under s. 148 and deletion of addition on merits were left for academic discussion only. Therefore, we do not propose to decide the same at this stage, as no notice under s. 143(2) was issued in this case. Therefore, there would not be any valid reassessment proceedings under s. 147 of the IT Act and all resultant additions made in such reassessment order would stand deleted.
Issues Involved:
1. Validity of assessment without issuance of notice under Section 143(2) of the IT Act. 2. Validity of notice issued under Section 148 without valid reasons. 3. Deletion of additions made under various heads like unexplained investment, loans raised, and unexplained capital. Issue-Wise Detailed Analysis: 1. Validity of Assessment Without Issuance of Notice Under Section 143(2): The main contention of the Revenue was the learned CIT(A)'s decision that the assessment order was null and void due to the absence of notice under Section 143(2). The assessee, engaged in the purchase and sale of motorcycles and spare parts, had filed a return declaring an income of Rs. 1,06,203. Subsequently, a notice under Section 148 was issued, leading to reassessment proceedings under Section 143(3)/147, culminating in a total income computation of Rs. 26,22,306 with various additions. The assessee argued that the reassessment was void due to the non-issuance of a notice under Section 143(2). The AO's remand report confirmed that no such notice was issued. The CIT(A) found that the AO's failure to issue the notice under Section 143(2) rendered the reassessment order without jurisdiction, thus setting it aside. The CIT(A) cited relevant amendments and case law, including the case of Punjab State Co-operative Supply & Marketing Federation Ltd. v. Union of India and CIT v. C. Palaniapan, which underscored the necessity of issuing a notice under Section 143(2) within the prescribed time. The Revenue's argument that Section 292BB of the IT Act should have been considered was dismissed, as this provision was not applicable retrospectively. The Tribunal upheld the CIT(A)'s decision, confirming that the absence of notice under Section 143(2) was a fatal flaw, making the reassessment order null and void. 2. Validity of Notice Issued Under Section 148 Without Valid Reasons: Given the Tribunal's decision on the first issue, the discussion on the validity of the notice under Section 148 became academic. The Tribunal did not delve into this issue, as the reassessment proceedings were already deemed invalid due to the lack of notice under Section 143(2). 3. Deletion of Additions Made Under Various Heads: Similarly, the issue of deletion of additions amounting to Rs. 25,16,103 under various heads such as unexplained investment, loans raised, and unexplained capital was not addressed in detail. The Tribunal noted that since the entire reassessment order was quashed, any resultant additions made in such an order would automatically stand deleted. Conclusion: The Tribunal confirmed the CIT(A)'s decision to set aside the reassessment order due to the non-issuance of notice under Section 143(2), rendering the reassessment proceedings null and void. Consequently, the issues regarding the validity of the notice under Section 148 and the deletion of additions were not adjudicated, as they became moot points. The Departmental appeal was dismissed in its entirety.
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