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TMI Blog2018 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee against the order dated 26.10.2012 of ld. CIT(A)-XII, New Delhi. 2. Following grounds have been raised in this appeal: 1. That in the facts and circumstances of the case the Ld CIT(A) had erred in upholding the Order of the Ld AO by which the Ld AO had rejected the explanation offered by the appellant by assuming an advance for a house property as deemed dividend under section 2(22). 2. That in the facts and circumstances of the case the appellant has been prejudiced as the Ld CIT (A) had erred by ignoring the additional evidence produced by the appellant. 3. That in the facts and circumstances of the case the addition of Rs,18,50,000/- is bad in law as the Ld CIT(A) has failed to take note of the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is to be completed u/s 143(3) r.w.s. 158BC, notice u/s 143(2) should be issued within one year from the date of block return. Omission on the part of assessing authority to issue notice u/s 143(2) cannot be procedural irregularity and the same is not curable and, therefore, the requirement of notice u/s 143(2) cannot be dispensed with. This is also been upheld by Hon'ble Delhi High Court in the case of CIT Vs Pawan Gupta and Ors. 318 ITR 322 (Del) wherein it was held- If the assessment is framed u/s 143(3) either read with section 147 of the Act. Then it is mandatory to issue notice u/s 143(2). The issuance and service of notice u/s 143(2) is mandatory and not procedural. 5. It was further submitted that in response t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee which is under:- Somlata Gahalaut, A-67, Sector-31, NOIDA-201301. In views of the facts stated above, the contention of the assessee that the Assessing Officer has not issued notice u/s 143(2) 142(1) is not acceptable as is evident from the assessment record. Hence, I am in agreement with the decision taken by the Assessing Officer and uphold this ground. 7. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that the AO issued the notice u/s 143(2) of the Act on 12.10.2011 i.e. prior to the furnishing of return of income in response to the notice u/s 148 of the Act on 27.10.2011. It was contended that since the notice u/s 143(2) of the Act was issued by the AO prior to the fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,2000 and the notice under section 143(2) was served upon the authorized representative of the assessee by hand when the authorized representative of the assessee came and filed return and that the date of the notice was mistakenly mentioned as March 23,2000. Even if it was true, the notice was served on the authorized representative simultaneously on his filing the return which clearly indicated that the notice was ready even prior to the filing of the return. The provisions of section 143(2) make it clear that the notice could only be served after the Assessing Officer had examined the return filed by the assessee. Thus, even if the statement of the Assessing Officer was taken at face value, it would amount to gross violation of the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee on the returnable date to treat the original return filed as a return filed pursuant to a notice under section 148, the Assessing Officer's failure to issue notice under section 143(2) invalidated the order of reassessment. No question of law arose. 12. A similar view has also been taken by the Hon ble Jurisdictional High Court in the case Pr. CIT Vs Silver Line (2016) 383 ITR 455 (Del.) held as under: The proposal to reopen an assessment under section 147 of the Income-tax Act, 1961, is to be based on reasons to be recorded by the Assessing Officer. Such reasons have to be communicated to the assessee. Merely because the assessee participates in the proceedings pursuant to such notice under section 148 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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