9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (1) TMI 999 - AT - Income TaxValidity of the assessment order issued in the absence of issuance of notice u/s 143(2) - protection u/s 292BB eligible or not? - HELD THAT - It is imperative from the record that the assessee has not been issued with the notice u/s 143(2) of the Act. The said fact of non-issuance of notice u/s 143(2) of the Act has been admitted by CIT(A) in its order. We have also gone through the assessment order and other materials and found that no notice u/s 143(2) of the Act was issued to the assessee. It is now well settled law that if the notice u/s 143(2) of the Act is not issued to the assessee before completion of the assessment, then the assessment is not sustainable in the eyes of law and deserve to be cancelled - See Hotel Blue Moon 2010 (2) TMI 1 - SUPREME COURT Society For Worldwide Interbank Financial Telecommunications 2010 (4) TMI 43 - DELHI HIGH COURT , M/s Panorama Builders Pvt. Ltd 2012 (8) TMI 955 - GUJARAT HIGH COURT . Eligibility of protection u/s 292BB - The said Section 292BB of the Act deals with (a) non service of notice (b) non service of notice in time (c) service of notice in an improper manner- but in the present case the issue is regarding non-issuance of notice itself and there is nothing on record to prove that the notice u/s 143(2) of the Act has been issued by the Assessing Officer. Therefore, in our considered opinion, the protection under section 292BB of the Act is not available to the Department in the case on hand. Thus as Department has not produced any evidence to show that the notice u/s 143(2) of the Act has been issued to the assessee, the assessment orders passed for the assessment years 2009-10 to 2012-13 are hereby quashed.
Issues involved:
The validity of assessment orders passed without issuance of notice u/s 143(2) of the Income Tax Act. Issue 1: Jurisdiction to reopen assessment without supplying reasons to assessee The appellant challenged the assessment orders for the years 2009-10 to 2012-13, arguing that the Assessing Officer's jurisdiction to reopen the assessment without supplying reasons violated the principles laid down by the Supreme Court in GKN Driveshafts (India) Ltd. v. DCIT. The Hon'ble CIT was criticized for confirming the order without justification. Issue 2: Non-compliance with mandatory notice u/s 143(2) The appellant contended that the assessment orders were erroneous due to the Assessing Officer's failure to issue and serve the notice u/s 143(2) of the Act. It was argued that this non-compliance rendered the assessment orders invalid and should be set aside. Issue 3: Estimation of net profit at a fixed rate The appellant objected to the Hon'ble CIT's estimation and presumption of the assessee's net profit at a fixed rate of 3% of turnover. The Tribunal noted that the absence of notice u/s 143(2) was a jurisdictional issue apparent on record. The learned counsel for the assessee argued that the non-compliance with the issuance of notice u/s 143(2) rendered the assessment orders liable to be set aside. After careful consideration of the materials on record, it was established that the assessee had not been issued a notice u/s 143(2) of the Act. Citing various judgments, including ACIT vs. Hotel Blue Moon and DIT vs. Society For Worldwide Interbank Financial Telecommunications, the Tribunal emphasized that non-issuance of the notice u/s 143(2) rendered the assessment unsustainable in the eyes of the law. The Tribunal held that the mandatory requirement of issuing notice u/s 143(2) within the prescribed time limit was not fulfilled, making the assessment orders invalid. Despite the provision of section 292BB of the Act, the Tribunal found that the protection was not available to the Department due to the non-issuance of the notice itself. Consequently, the Tribunal quashed the assessment orders for the years 2009-10 to 2012-13, giving the Revenue the opportunity to produce evidence of the notice u/s 143(2) issuance. The appeals filed by the assessee were partly allowed based on the non-compliance with the mandatory notice requirement. (Order pronounced in the open court on 01/12/2023)
|
