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TMI Blog2017 (12) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR, HON'BLE ACCOUNTANT MEMBER For The Assessee : Shri Margav Shukla Shri Mansi Shah For The Department : Ms. Arju Garodia ORDER PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) 21, Mumbai dated 28.03.2016 for the Assessment Year 2011-12. The assessee in its appeal raised several grounds of appeal both on validity of issue of service of notice u/s.143(2)/148 of the Act as well on merits of the disallowances. 2. Learned Counsel for the assessee, at the outset submits that there is no valid service of notice u/s. 148 of the Act, as the notice was issued on a different address where the assessee was conducting business prior to the Assessment Year 2008-09. Learned Counsel for the assessee referring to page Nos. 11 to 18 which are the copies of acknowledgements of returns filed for the Assessment Years 2008-09 to 2014-15, submitted that the returns were filed before the Assessing Officer showing the new address i.e. 3A-3B, Prime Plaza, J. V. Patel Compound, B.S. Madhukar Road, Elphinstone (W), Mumbai. Learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) order, it is an admitted fact that notice u/s. 143(2) dated 19.01.2015 was issued and served on the assessee in the course of Assessment Proceedings. Proviso to section 143(2)(ii) mandates that no notice shall be served on the assessee after the expiry of six months from the end of the Financial Year in which the return is furnished. In this case the return of income was furnished by the assessee on 20.09.2011 for the Assessment Year 2011-12 and the period for issue of notice u/s. 143(2)(ii) expired on 30.09.2012 i.e. six months from the end of the Financial Year in which return was furnished by the assessee. In the Remand proceedings also the Assessing Officer stated that notice u/s.143(2) dated 19.01.2015 was issued and served on the assessee. 6. In the case of CIT v. M/s. Salarpur Cold Storage (Pvt.) Ltd (supra) the Hon'ble Allahabad High Court considered a situation where the notice was issued beyond the period specified in the section and in such circumstances whether such notice is valid and consequent Assessment Order is valid or not. It was held that where the Assessing Officer fails to issue a notice within a period of six months as specified in the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for AY 2008-09. The notice under Section 143 (2) of the Act ought to have been issued by 30 September 2009 which was the date of the expiry of the period of six months from the end of the financial year in which the return was furnished. A notice was, however, issued on 6 October 2009 much beyond the period of six months. In such a situation, there could be no occasion to serve the notice within six months since the very act of issuance was beyond six months. Now, it is in this background that it would be necessary to consider the provisions of Section 292 BB of the Act. Section 292 BB provides as follows: - 292 BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment. It shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- ( a) not served upon him; or ( b) not served upon him in time; or ( c) served upon him in an imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(2). However, if an assessment is to be completed under Section 143(3) read with Section 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. The Supreme Court has, therefore, clearly held that the omission on the part of the Assessing Officer to issue a notice under Section 143(2) of the Act is not a procedural irregularity and is not curable. The requirement of a notice under Section 143(2) of the Act cannot be dispensed with. In our view, where the Assessing Officer fails to issue a notice within the period of six months as spelt out in the proviso to clause (ii) of Section 143 (2) of the Act, the assumption of jurisdiction under Section 143 (3) of the Act would be invalid. This defect in regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction under Section 292 BB of the Act. The fiction in Section 292 BB of the Act overcomes a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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