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TMI Blog2017 (3) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... - 10-3-2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Sh. S.D. Kapila, Adv., Sh. Pnayush Sharma, Sh. Sushil Kumar, Adv. and Sh. Pankaj Rohia, CA For The Department : S h. S.K. Jain, DR ORDER PER H.S. SIDHU, JM The Assessee has filed these two appeals against the separate impugned orders both dated 31.3.2015 passed by the Ld. Commissioner of Income Tax (Appeals)-7, Delhi relevant to assessment years 1999-2000 2000-01. The grounds raised in both the appeals are similar and identical, except the figures involved, hence, the appeals were heard together and are being disposed of by this common order for the sake of brevity. 2. The grounds raised in ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT(A) erred in law by blindly following the order of CIT(A) for A.Y 2001-02 on the merits of the case and without taking into account material evidence on record, which was entirely different from A.Y. 2001-02. 8. That the CIT(A) erred in directing the A.O to re-compute interest u/s 234B, 234C of the Act. 9. That the CIT(A) has erred in initiating penalty proceeding under Sec. 271(1)(c) of the Act. 10. That the Appellant craves leave to amend, alter, or add fresh grounds of appeal during the course of proceedings. 2. The brief facts of the case are that the asssessee filed its return of income for the AY 1999-2000 on 22.2.2001 declaring total loss of ₹ 18,97,061/- after claiming exemption u/s.10(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Revenue Authorities. We find considerable cogency in the assessee s counsel submissions that the assessment order passed by the Assessing Officer is without jurisdiction and void-ab-initio and is liable to be quashed, as no notice under section 143(2) of the Act was issued and served on assessee. Therefore, the assessment proceedings initiated are illegal, unsustainable and untenable under the law. Hence, the assessment so framed by the AO is totally illegal and needs to be quashed. My view is fully supported by the following judgment of the Hon ble Supreme Court of India, Hon ble High Courts, Coordinate Benches of the ITAT decisions:- ACIT Anr. vs. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)] HELD: It is mandatory fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a mandatory notice is required to be issued by the assessing officer and it has not been issued within the period of limitation fixed under the law, then such notice shall be deemed to have been issued within time. It has been further held that resort cannot be taken by the Revenue to section 292BH to give a go-bye to mandatory requirement of issuance of notice within the statutory fixed by the proviso to section I43(2) of the Act. CIT vs Rajeev Sharma 336 ITR 678, High court of Allahabad. In view of above submissions and case laws, it has been established that no notice u/s 143(2) was issued in the present case and therefore the impugned assessment is liable to be annulled. M/s Sapthagiri Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l procedural requirement. Omission to issue notice u/s 143 (2) is not curable and the requirement cannot be dispensed with. S. 143(2) is applicable to proceedings u/s 147 148. JYOTI PAT RAM VS. ITO [(2005) 92 ITD 423 (Lucknow) - ShreeJai Shiv Shonhor Traders (P) Ltd. - A.Y. - 2008-09 Reassessment order passed under section 143(3)/148 without issue of a valid notice under section 143(2) was illegal. RAJ KUMAR CHA WLA AND ORS. VS. ITO - (2005) 94 ITD 1 (Del)(SB) Limitation for re-assessment- Service of notice u/s143(2) in time - A.Y.1995-96. It was presumed by legal fiction that a return filed uls 148 of the Income Tax Act 1961 would be treated as a return filed u/s 139 of the Act. The assessee had filed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2007, the AO was informed that the Assessee was in the process of filing its reutnr and an adjournment was requested. The AO had acceded to his request, which would be wholly unnecessary if the AO was of the view that a belated return would be invalid. Thus, in the facts of the present case, the returns filed by the assessee could not be ignored by the AO. 8. In the background of the aforesaid discussions and respectfully following the precedents as aforesaid, we are of the considered view that the Jurisdictional AO has not issued any notice u/s 143(2) of the I.T. Act to the assessee, hence, the assessment order in dispute is invalid, void abnitio and against the provisions of the law and is not sustainable in the eyes of law. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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