9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (8) TMI 620 - HC - Income TaxReopening of assessment - requirement of issuance of notice - exemption claimed by the assessee under Section 10(20) was not tenable as it was not a local authority within the meaning of Section 10(20) - ITAT allowed assessee s appeal - Held that - It is clear that the essential requirement is issuance of notice under Section 143(2) of the Act. The deeming fiction under Section 292BB of the Act is with regard to service of notice . Since the initial requirement of issuance of notice was not made by the Assesssing Officer, the deeming fiction of service of notice under Section 292BB of the Act, consequently, does not arise and is not applicable. In the light of the aforesaid, since the Assessing Officer failed to issue notice within the specified period under Section 143(2) of the Act, the Assessing Officer had no jurisdiction to assume jurisdiction under Section 143(2) of the Act and this defect cannot be cured by taking recourse to the deeming fiction provided under Section 292BB of the Act. Consequently, the Tribunal was justified in setting aside the order of the Assessing Officer as well as the order of the Appellate Authority. - Decided in favour of assessee.
Issues Involved:
1. Validity of reassessment proceedings under Sections 147 and 148 of the Income Tax Act. 2. Requirement and issuance of notice under Section 143(2) of the Income Tax Act. 3. Applicability and interpretation of Section 292BB of the Income Tax Act. 4. Adequacy of opportunity provided to the Department to produce original records. Detailed Analysis: 1. Validity of Reassessment Proceedings: The reassessment proceedings for multiple assessment years were initiated under Sections 147 and 148 of the Income Tax Act after obtaining approval from the Joint Commissioner of Income Tax. The primary contention was whether the reassessment was valid in the absence of a notice under Section 143(2). The Tribunal found that the reassessment orders were invalid due to the non-issuance of the mandatory notice under Section 143(2), leading to the quashing of the assessment orders. 2. Requirement and Issuance of Notice under Section 143(2): The Tribunal and the High Court emphasized that the issuance of a notice under Section 143(2) is a jurisdictional requirement for the Assessing Officer to proceed with the assessment. The High Court referred to the Supreme Court's decision in Assistant Commissioner of Income Tax Vs. Hotel Blue Moon, which held that omission to issue such notice is not a procedural irregularity but an incurable defect. The High Court found that no notice under Section 143(2) was issued within the stipulated period, rendering the reassessment proceedings invalid. 3. Applicability and Interpretation of Section 292BB: Section 292BB, which was introduced to deem service of notice if the assessee participates in the proceedings, was analyzed. The High Court clarified that Section 292BB applies to the service of notice, not the issuance. The Court held that since the initial requirement of issuance of notice under Section 143(2) was not met, the deeming fiction under Section 292BB could not cure this defect. The Court further noted that Section 292BB is not applicable to the assessment years in question as it was introduced with effect from April 1, 2008. 4. Adequacy of Opportunity Provided to the Department: The Department contended that it was not given adequate opportunity to produce the original records before the Tribunal. However, the High Court found this argument redundant given the clear finding on the non-issuance of the notice under Section 143(2). The Court observed that the Department was not fair in its assertions and that there was no affidavit from the departmental representative to support the claim of lack of opportunity. The Court also criticized the Department for attempting to mislead by asserting that a notice under Section 142(1) was a notice under Section 143(2). Conclusion: The High Court dismissed the appeals, affirming the Tribunal's decision that the reassessment orders were invalid due to the non-issuance of the mandatory notice under Section 143(2). The Court held that this defect could not be cured by Section 292BB and criticized the Department for attempting to mislead the Court. No substantial question of law was found to warrant further consideration.
|
