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TMI Blog2021 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under section 143(3) read with section 147 of the Act as unsustainable in the absence of issuance of statutory notice under section 143(2) of the Act upon the assessee. 4. The assessee before the Ld. CIT (A) has raised the objection upon validity of the impugned assessment on the ground that the statutory notice under section 143(2) of the Act was not issued upon it. Accordingly, the assessee claimed that the assessment framed under section 143(3) read with section 147 of the Act vide order dated 10-03-2015 is not sustainable and thus liable to be quashed. 4.1 The assessee also submitted that the fact of non-issuance of notice under section 143(2) of the Act was also admitted by the AO in his remand report dated 8-8-2018. Likewise, such defect i.e.non-issuance of notice under section 143 (2) of the Act cannot be cured under the provisions of section 292BB of the Act. 4.2 The Ld. CIT-A after considering the submission of the assessee concluded that the assessment framed under section 147 read with section 143(3) of the Act is invalid in the absence of statutory notice to be issued under section 143(2) of the Act. 5. Being aggrieved by the order of the Ld. CIT-A, the Revenue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 :] 9.2 We further note that the expression used under section 148 of the Act i.e. "so for as may be" has been interpreted by the Hon'ble Apex court in the case of R Dalmia Vs. CIT reported in 236 ITR 480, that once the return filed under section 148 of the Act then in making the assessment and reassessment under section 147 of the Act the provisions as specified under section 139 of the Act has to be followed. The relevant extract of the judgment is reproduced as under: "It is no 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 in sections subsequent to section 139, including that laid down by section 144B, has to be followed; 9.3 From the above judgment, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 139(2) and that all the provisions of the Act shall apply to the subsequent procedure and the final assessment. In other words, the notice issued under section 148 has to be deemed to be a notice under section 139(2) and, if the other provisions of the Act have to be applied, an assessment in pursuance of that can be made only under section 143 or section 144. We were not shown any other provision by which the Income-tax Officer is authorised to make an order of assessment under the Act. The provisions contained in section 140A also give an indication that an assessment made in pursuance of a notice under section 148 is a regular assessment under section 143 or section 144, for section 140A(2) provides that any admitted tax paid in pursuance of section 140A(1) shall be deemed to have been paid towards the regular assessment under section 143 or section 144. It is pertinent to note that section 140A(1) deals with a return required to be furnished under section 139 or section 148. That makes the provision clear that an assessment made under section 147 also will be a regular assessment under section 143 or section 144. Accordingly, we hold that any assessment made for the first t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o further consideration and are dismissed with no order as to costs.; 9.7 Thus in view of the above we conclude that the AO was under the obligation to issue a notice under section 143(2) of the Act for making the assessment or reassessment as the case may be under section 147 of the Act. But the AO has not done so. Accordingly, the order framed under section 143(3) read with section 147 of the Act becomes invalid. 9.8 We further note that the provisions of section 292BB of the Act deals with the situation where notice is not served or not served on time or served in a improper manner viz a viz the assessee does not raise objection before the completion of the assessment. As such, the provision of section 292BB of the Act does not deal about the issuance of notice. In the present case, the issue is whether the assessment framed under section 147/143(3) of the Act is valid without the issuance of the mandatory notice under section 143(2) of the Act. Accordingly we hold that, the provision of section 292BB of the Act does not extend any benefit to the Revenue. 9.9 In holding so we find support and guidance from the judgment of Hon'ble Gujarat High Court in the case of PCIT v/s Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not the Assessing Officer has accepted the return of income as filed by him. As held by the Supreme Court, omission to issue a notice under section 143(2) is not a procedural irregularity and is not curable. It is, therefore, mandatory to issue notice under section 143(2) of the Act. Section 292BB provides for a deeming provision that any notice under any provision of the Act, which is required to be served upon the assessee, has been duly served upon him in time, in accordance with the provisions of the Act. This section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of the present case, at the cost of repetition, it may be stated that no notice under section 143(2) has been issued after the assessee had filed its return of income and hence, section 292BB would not be attracted. In the light of the fact that non-issuance of a notice under section 143(2) is not a proced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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