2019 (10) TMI 390 - AT - Income Tax

Reopening of assessment - assessment was completed without issuing notice the u/sec. 143(2) - HELD THAT - In the instant case though notice was stated to have been issued there was no entry in the order sheet for issue of notice and there is no evidence for dispatch of notice provided by the department. Hence we hold that no notice was issued in this case u/sec. 143(2) before the due date i.e 30/09/2011 and the assessee s case is squarely covered by the decision of Hon ble Madras High Court in the case of Gitsons Engineering Company 2014 (11) TMI 59 - MADRAS HIGH COURT In the instant case there is no evidence of issue of notice u/s 143(2) we hold that the assessment made u/sec. 143(3) r.w.s. 147 is unsustainable and void ab initio and accordingly we annul the assessment made under section 143(3) r.w.s 147 of the act. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of assessment framed under Section 143(3) read with Section 147.
2. Issuance and validity of notice under Section 148.
3. Service of notice under Section 143(2) and its impact on the assessment's validity.

Issue-Wise Detailed Analysis:

1. Validity of Assessment Framed Under Section 143(3) Read with Section 147:
The appeals by different assessees were directed against separate orders of the Commissioner of Income Tax (Appeals), Visakhapatnam, both dated 28/06/2013 for the Assessment Year 2005-06. The assessees raised additional grounds regarding the validity of the assessment framed under Section 143(3) read with Section 147, specifically challenging the issuance of notice under Section 148 and the absence of notice under Section 143(2). The Tribunal found that the service of notice under Section 143(2) is a mandatory requirement as per the Income-tax Act, and the failure to serve this notice within the prescribed time limit rendered the assessment invalid.

2. Issuance and Validity of Notice Under Section 148:
The assessees contended that the notice issued under Section 148 was invalid due to the lack of approval/sanction from the higher authority as mandated by Section 151. However, this ground was not pressed during the appeal hearing and was subsequently dismissed. The Tribunal focused on the procedural lapses concerning the issuance and service of notices under Sections 143(2) and 148.

3. Service of Notice Under Section 143(2) and Its Impact on the Assessment's Validity:
The Tribunal admitted the additional grounds raised by the assessees, emphasizing that the service of notice under Section 143(2) is mandatory. The assessees argued that the Assessing Officer did not serve the notice under Section 143(2) within the stipulated period, making the reassessment invalid. The Tribunal found no evidence to show that the notice was dispatched or served on the assessees on or before 30/09/2011. The Tribunal relied on several case laws, including decisions from the High Courts of Gujarat, Allahabad, Delhi, and Madras, which supported the view that the absence of notice under Section 143(2) renders the assessment void ab initio. The Tribunal concluded that the assessment framed under Section 143(3) read with Section 147 was unsustainable and void ab initio due to the failure to issue and serve the notice under Section 143(2) within the prescribed time limit.

Conclusion:
The Tribunal annulled the assessments made under Section 143(3) read with Section 147, deeming them void ab initio due to the procedural lapses in issuing and serving the necessary notices. The appeals filed by the assessees were allowed, and the assessments were set aside.