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TMI Blog2010 (7) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, a Company, runs a Hospital at Sitapur Road, Lucknow. The income tax returns for the assessment year 1998-99 and 1999-2000 were filed showing loss of ₹ 221974.00 which was processed under Section 143 (1) of the Income Tax Act (In short the Act). The assessment for both the assessment years, were reopened under Section 148 of the Act and notice under Section 148 of the Act was issued on 8.3.2002. A notice under Section 142 (1) was also issued on 28.1.2003 and the assessment was completed under Section 147/148 of the Act on 13.3.2003 on the total income of ₹ 27,44,310.00 and ₹ 27,54,870.00 for both years. The assessee preferred appeal which was rejected by the appellate [2] authority. Hence the assessee approached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing another condition that the provisions of Section 143 (2) of the Income Tax Act 1961 are also required to be complied with. III. Whether the learned Income Tax Appellate Tribunal has failed to appreciate that the assessee had acquiesced in or waived an irregularity, if any, in the notice under section 143 (2) of the Income Tax Act, 1961 by participating in the assessment proceeding before the assessment officer without agitating the issue of non-issuance of the said notice and ignoring the law laid down by the Hon'ble Gujrat High court in the case of Setlavad Brothers. Vs. M. K. Meerani, ACIT (2002) 253 [3] ITR, 513. 6. While assailing the impugned order of Tribunal, it has been vehemently argued by Sri D.D. Chopra tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , requirement of notice under Section 143 (2) of the Act, cannot be dispensed with. Relevant portion from the judgment of Rajiv Sharma (supra) is reproduced as under: 49. In the case of R. Dalmia (supra), Hon'ble Supreme court held that for assessment or re-assessment under Section 147 of the Act, the procedure laid down in Section 139 including Section 144 B [4] should be followed. To reproduce relevant portion from the judgment of R. Dalmia as under: As to the argument based upon sections 144A, 246 and 263, we do not doubt that assessments under section 143 and assessments and reassessments under Section 147 are different, but in making assessments and reassessments under section 147 the procedure laid down I n sections sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) read with Section [5] 158-BC, notice under Section 143 (2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143 (2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143 (2) cannot be dispensed with. 10. In view of the above, keeping in view the judgment of Hon'le Supreme Court in the case of Hotel Blue Moon (supra) and the judgment of this Court, the argument raised by the appellant's counsel, does not seem to be sustainable. Once their lordships of Hon'ble Supreme Court settled that non-issuance of notice under Section 143 (2) is not curable, then it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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