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TMI Blog2013 (9) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - IT Appeal No. 220 (Agra) of 2011 - - - Dated:- 4-1-2013 - Bhavnesh Saini And A. L. Gehlot , JJ. For the Appellant : K.K. Mishr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the original return may be treated to have been filed in response to the notice under s. 148, therefore, there is compliance to the notice under s. 148. Copies of the acknowledgement of filing of the original return and intimation under s. 143(1) were also filed. The learned CIT(A), considering the explanation of the assessee and the material on record held that since no notice under s. 143(2) of the IT Act has been issued in the assessment proceedings, therefore, reassessment order is without jurisdiction and accordingly, reassessment order was set aside. The findings of the learned CIT(A) in para 7.1 of the impugned order are reproduced as under : 7.1 On the issue of notice under s. 143(2): This is now an undisputed fact that no notice under s. 143(2) was ever issued in this case. The AO in remand report tries to justify this by arguing that as no details of return filed earlier, were furnished, so appellant's counsel simply stating that return already filed may be treated as return in response to notice under s. 148, was not enough. According to AO, there was no requirement of issue of notice under s. 143(2), because no return has been filed by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall apply as if the return furnished in response to such notice were a return required to be furnished under s. 139. A proviso is inserted to sub-s. (1) so as to provide that where a return has been furnished during the period from 1st Oct., 1991 to 30th Sept., 2005, in response to a notice served under s. 148 and, subsequently a notice has been served under s. 143(2) after the expiry of twelve months specified in the proviso to sub-s. (2) of s. 143 as it stood immediately before the amendment of said sub-section by the Finance Act, 2002, but before the expiry of the time-limit for making the assessment, reassessment or recomputation as specified in sub-s. (2) of s. 153, such notice shall be deemed to be valid notice. Further, a proviso is inserted in the said sub-section so as to provide that where a return has been furnished during the period from 1st Oct., 1991 to 30th Sept., 2005 in response to a notice served under s. 148 and, subsequently a notice has been served under cl. (ii) of sub-s. (2) of s. 143 after the expiry of twelve months specified in the proviso to cl. (ii) of sub-s. (2) of s. 143, but before the expiry of the time-limit for making the assessment, rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as filed under s. 14, it contemplates that both procedural and substantive provisions will apply. Therefore, while invoking the powers under s. 17, the AO is bound by the mandate of the proviso to s. 16(2) and on failure the order of reassessment will be without jurisdiction and consequently the order of reassessment will have to be set aside. 4. The learned Departmental Representative in support of the grounds of appeal submitted that the learned CIT(A) failed to consider the provisions contained under s. 292BB of the IT Act. The learned Departmental Representative, however, admitted that no notice under s. 143(2) was ever issued in this case at reassessment proceedings. Copy of the order sheet is filed at p. 20 of the paper book. The learned Departmental Representative relied upon the decision of Hon'ble Madras High Court in case of Areva T D India Ltd. v. ACIT, 294 ITR 0233, in which it was held that when the assessee participated in reassessment proceedings-failure to consider the objections and failure to issue notice under s. 143(2)-reassessment order not void, but irregular and the matter was remanded to the AO to consider the issue afresh. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Investments v. ITO, 25 Taxmann.com 341 (Mad), in which it was held that merely because the matter was discussed with the assessee and signature is affixed, it does not mean rest of procedure of notice under s. 143(2) stood complied with. 5. We have considered the rival submissions and the material on record. It is not in dispute that the assessee filed original return of income and at the reassessment proceedings, the assessee contended before the AO that the original return filed earlier may be treated to have been filed in response to the notice under s. 148, which is also supported by order sheet entry dt. 9th Aug., 2006 (PB-20). It is also not in dispute that AO never issued any notice under s. 143(2) of the IT Act. The Revenue merely contended that the CIT(A) should have appreciated the provisions of s. 292BB of the IT Act. Sec. 292BB of the IT Act provides as under: 292BB. Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, winch is required to be served upon him, has been duly served upon him in time in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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