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TMI Blog2016 (4) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... ] The learned CIT(A) erred in holding that the reassessment u/s. 147 was valid in law without appreciating that no notice u/s. 143(2) was issued to the assessee and accordingly, the reassessment order should have been held to be null and void. 2] The learned CIT(A) erred in holding that since the assessee had attended during the asst. proceedings and had not raised the objection of non issue of notice u/s. 143(2), the assessee was precluded from the said objection in the appellate proceedings in view of the provisions of Section 292BB. 3] The learned CIT(A) failed to appreciate that the provisions of Section 292BB were not applicable to the facts of the present case and therefore, the assessee had a right to agitate the validity of the reassessment order even though the assessee had not raised the objection during the reassessment proceedings. 4] The learned CIT(A) ought to have appreciated that since no notice u/s. 143(2) was issued by the learned A.O., the reassessment order was not valid and accordingly, the same should have been declared null and void. 5] Without prejudice to the above grounds, the learned CIT(A) erred in holding that the assessee was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention before the CIT(A) at the first instance that no notice under section 143(2) of the Act was issued. The notice was issued under section 142(1) of the Act only together with questionnaire. The assessee therefore agitated the validity of the re-assessment order and contended that in the absence of statutory notice mandated under section 143(2), the re-assessment order is void ab initio and deserves to be annulled. The assessee submitted that the Assessing Officer ought to have issued notice under section 143(2) within prescribed time limit to enable him proceed with the re-assessment proceedings. He pointed out that as can be seen from para 2 of the assessment order, it is manifest that issuance of notice under section 142(1) of the Act only is in reference. There is no assertion to the effect that notice under section 143(2) has been issued. He further added that the defect in non-issuance of notice under section 143(2) is not curable under section 292BB of the Act. The CIT(A) obtained remand report from the Assessing Officer dated 10.09.2013 in the matter which is reproduced in para 6 of the order of the CIT(A). As per the remand report, the Assessing Officer admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be bypassed. For this proposition, he cited various decisions viz: ACIT vs. Hotel Blue Moon, (2010) 321 ITR 362 (SC); ACIT vs. Geno Pharmaceuticals Ltd., (2013) 32 taxmann.com 162 (Bom.); Sapthagiri Finance Investments vs. ITO, (2013) 90 DTR 289 (Mad.) and the decision of the Co-ordinate Bench of the Tribunal in the case of Machale Govindrao Namdeorao vs. ITO in ITA No.1982/PN/2012, order dated 08.01.2014. The Ld. Authorized Representative for the assessee further relied upon the decision of the Hon ble Delhi High Court in the case of Pr.CIT vs. Shri Jai Shiv Shankar Traders Pvt. Ltd. in ITA No.519/2015, order dated 14.10.2015 for the proposition that issuance of notice under section 143(2) is mandatory and section 292BB does not provide immunity from the applicability of section 143(2) of the Act. 10. The Ld. Departmental Representative for the Revenue, on the other hand, relied upon the order of the CIT(A) and submitted that mere nonissuance of notice under section 143(2) by itself will not invalidate the reassessment order. He submitted that the assessee was duly informed of the reassessment proceedings and notice under section 142(1) was duly issued in any case. He next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.2011 addressed to the Assessing Officer as noted above. In other words, a valid return is deemed to have been filed by the assessee in the present case under section 139 of the Act in compliance of notice under section 148 of the Act. As noted above, return filed in response to notice under section 148 is deemed to return filed under section 139 and all the provisions of the Act shall apply accordingly. As a corollary, as per the mandate of section 143(2) of the Act, the notice for assessment has to be necessarily issued in so far as the return deemed to have been filed under section 139 of the Act. 13. A plain reading of Section 143(2) suggests that where a return has been furnished under section 139 or in response to notice under section 142(1), the provisions of section 143(2) will come into play. In view of the regularization of the earlier return filed as return filed in response to notice under section 148 which in turn deems such return as return filed under section 139 of the Act, the requirement of issuance of notice under section 143(2) cannot be dispensed with. We find that the aforesaid contention is squarely covered by the decision of the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances at all. Unlike the aforesaid case, it is apparent that a valid return is deemed to have come into existence under section 139 of the Act in the present case in view of the specific request of the assessee to consider the return filed earlier as return in response to notice under section 148 of the Act. Therefore, the aforesaid decision of the Pune Bench of the Tribunal (supra) is of no assistance to the Revenue. Since we have held that the re-assessment order is bad in law and is therefore a nullity, the other Grounds concerning the merits emanating from the aforesaid re-assessment order becomes infructuous and does not call for any adjudication. 15. In the result, the appeal of the assessee in ITA No.338/PN/2014 relating to assessment year 2007-08 is allowed. ITA No.339/PN/2014 (A.Y. 2008-09): 16. Now, we shall take-up the appeal of the assessee in ITA No.339/PN/2014 relating to assessment year 2008-09. 17. In this appeal, the facts and issues involved are identical to that of assessment year 2007-08 with some minor variations. In this assessment year, the return was filed on 29.05.2009 i.e. within the prescribed time limit under section 139(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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