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2018 (6) TMI 898 - AT - Income TaxValidity of reopening of assessment - Scrutiny assessment u/s 143(3) - notice u/s. 143(2) was not issued to the assessee which is a mandatory requirement - Held that - AS relying upon the judgement in case of M/S. TINY GIRL CLOTHING COMPANY PRIVATE LIMITED, C/O JAYESH SANGHRAJKA & CO. LLP CHARTED ACCOUNTANTS VERSUS DCIT 2017 (12) TMI 1342 - ITAT MUMBAI where it is said that no valid issue of notice u/s. 143(2) is served in this case and consequently the Assessment Order passed u/s. 143(3) is a nullity - thus in the instant case since the he Revenue could not prove that the notice u/s. 143(2) has been issued and served on the assessee in the case on hand before us. Therefore, in the absence of issue and service of notice u/s. 143(2) the re-assessment made by the AO u/s. 143 r.w.s. 147 for the AY 2011-12 became null and void - Decided against the revenue.
Issues Involved:
1. Validity of the assessment order due to the absence of notice under section 143(2). Detailed Analysis: Validity of the Assessment Order Due to Absence of Notice under Section 143(2): The primary issue in this appeal is whether the assessment is valid in the absence of issue and service of notice under section 143(2) of the Income Tax Act. The assessee argued that the assessment should be considered null and void because the mandatory notice under section 143(2) was not issued. The Ld. Commissioner of Income-tax (Appeals) held that the assessment was valid under section 292BB since the assessee participated in the assessment proceedings without raising any objections. The Tribunal reviewed several judicial precedents, including the Hon'ble Jurisdictional High Court's decision in ACIT v. Geno Pharmaceuticals Ltd., which held that the issuance of notice under section 143(2) is mandatory, and in its absence, the Assessing Officer cannot proceed with the assessment. Similarly, the Hon'ble Delhi High Court in Pr.CIT v. Silver Line and the Hon'ble Kerala High Court in Travancore Diagnostics (P.) Ltd. v. ACIT reiterated that the requirement to issue notice under section 143(2) is mandatory, and section 292BB does not dispense with this requirement. The Tribunal also considered the case of M/s. Tiny Girl Clothing Company Private Limited, where it was held that the failure to issue notice under section 143(2) within the prescribed period invalidates the assessment. The Tribunal emphasized that the issuance of notice is a jurisdictional requirement, and its absence renders the assessment null and void. In the present case, the Revenue could not prove that the notice under section 143(2) was issued and served on the assessee. Consequently, the Tribunal concluded that the reassessment made by the Assessing Officer under section 143 read with section 147 was null and void due to the absence of the mandatory notice under section 143(2). Therefore, the assessment order dated 28.03.2014 for the Assessment Year 2011-12 was quashed as bad in law. Conclusion: The appeal of the assessee was allowed, and the cross objection of the Revenue was dismissed as infructuous. The Tribunal held that the assessment order was invalid due to the failure to issue and serve the mandatory notice under section 143(2). This decision underscores the importance of adhering to procedural requirements in tax assessments.
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