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TMI Blog2015 (10) TMI 1765X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Assessment Year ('AY') 2008-09. 2. The Assessee filed its return of income for the AY in question on 16th September, 2008. The said return was accepted by the Department and an acknowledgement was issued under Section 143(1) of the Act. 3. It appears that subsequently the return was picked up for scrutiny. After recording reasons, notice apparently was issued by the Assessing Officer (AO) to the Assessee on 30th March, 2010 under Section 148 of the Act. It is not in dispute that this notice was never served on the Assessee. 4. Subsequently, on 1st October, 2010, a notice was issued under Section 143(2) of the Act by the AO stating that there were certain points in connection with the return filed for the AY in question on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y evidence. Secondly, it was held that non issue of notice under Section 143(2) did not render the reassessment invalid. 7. The Assessee's further appeal has been allowed by the ITAT by the impugned order. Relying, inter alia, on the decision of the Supreme Court in ACIT v. Hotel Blue Moon (2010) 321 ITR 362 and a plethora of judgments of the High Courts, the ITAT concluded that for completing the assessment under Section 148 of the Act compliance with the procedure under Section 143 (2) was mandatory. It was held that if notice was not issued to the Assessee before completion of the re-assessment, then such reassessment was not sustainable in law. 8. When this appeal was first listed before this Court on 29th July, 2015 reliance was plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is concerned. 10. Ms Aggarwal nevertheless urged that notwithstanding the above position, the decision of this Court in CIT v. Vision Inc. (2012) 73 DTR 201 (Del) would apply. The said judgment held that since on the facts of that case the Assessee had been properly served with the notice under Section 143(2) of the Act within the statutory time limit prescribed under the proviso thereto, the ITAT should not have set aside the re-assessment in toto. Ms Aggarwal placed reliance on Section 292BB of the Act and urged that the Assessee having not raised any objection about non service of the notice under Section 143(2) of the Act either at any time before the AO or prior to, or during the reassessment proceedings, the Assessee was preclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court. In CIT v. Rajeev Sharma (2011) 336 ITR 678 (All.) it was held that a plain reading of Section 148 of the Act reveals that within the statutory period specified therein, it shall be incumbent to send a notice under Section 143(2) of the Act. It was observed: "the provisions contained in sub-Section (2) of Section 143 is mandatory and the legislature in their wisdom by using the word 'reason to believe' had cast a duty on the Assessing Officer to apply mind to the material on record and after being satisfied with regard to escaped liability, shall serve notice specifying particulars of such claim. In view of the above, after receipt of return in response to notice under Section 148, it shall be mandatory for the AO to serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has raised an objection before the completion of the assessment or reassessment. Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under Section 143 (3) of the Act, it is necessary to issue a notice under Section 143 (2) of the Act and in the absence of a notice under Section 143 (2) of the Act, the assumption of jurisdiction itself would be invalid." 16. In the same decision in v. Salarpur Cold Storage (P.) Ltd.( supra), the Allahabad High Court noticed that the decision of the Supreme Court in ACIT v. Hotel Blue Moon (supra) where in relation to block assessment, the Supreme Court held that the requirement to issue notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Act and the Officer had also noted that the same would be considered for completing of assessment, would show that the AO has the duty of issuing the notice under Section 143(3) to lead on to the passing of the assessment. In the circumstances, with no notice issued u/s 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver of right of notice to be issued u/s 143(2) of the Act." 18. As already noticed, the decision of this Court in CIT v. Vision Inc. proceeded on a different set of facts. In that case, there was a clear finding of the Court that service of the notice had been effected on the Assessee under Section 143 (2) of the Act. As already further notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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