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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 ..... n 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. We conclude that it was mandatory to issue the statutory notice under section 143(2) of the Act within the prescribed time and such defect cannot be cured under the provisions of section 292BB - Decided against revenue. - ITA No. 121/AHD/2019 - - - Dated:- 28-6-2021 - Shri Mahavir Prasad, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri M.S. Chhajad, A.R For the Revenue : Shri R.R. Makwana, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner of Income Tax(Appeals)-8, Ahmedabad, dated 02/11/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s 147 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2008-2009. 2. The Revenue has raised the following grounds of appeal: 1. That the Ld.CIT(A) has erred in law and on the facts in quashing the assessment order dated 10/03/2015 passed u/s.143(3) r.w.s 147 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and liable to be quashed. The learned AR reiterated the contentions made before the learned CIT (A). 8. The ld. AR and the Ld. DR before us vehemently supported the order of the authorities below as favourable to them. 9. We have heard the rival contentions and perused the materials available on record. The issue in the instant case raises two situations as detailed under: 1- Whether the assessment made under section 143(3) read with section 147 of the Act without issuing the notice under section 143(2) is valid. And 2- Whether the provision of section 292BB is attracted in the given facts and circumstance so as to make the assessment valid. 9.1 Admittedly, the return was filed by the assessee in response to the notice issued under section 148 of the Act. The return filed under section 148 of the Act is deemed to have filed under section 139 of the Act. Therefore all the provision specified under section 139 of the Act comes into play to a return filed under section 148 of the Act. The relevant provisions of section 148 of the Act read as under: [Issue of notice where income has escaped assessment. 148. [(1)] Before making the assessment, reassessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a return under section 139 will be valid with equal force to a return filed under section 148. Therefore, the proviso will apply to a return filed in response to notice under section 148. Clause (b) of section 158BC specifically talks of the applicability of section 142, sub-sections (2) and (3) of section 143. There is an omission of sub-section (1) of section 143. This Chapter clearly prescribes its own return, form of own methodology for computation of income but falls back on the provisions of sections 142, 143 and 144 etc., only for procedural aspect. If the proviso is made applicable, then a clash erupts between the provisions of Chapter XIV-B with section 143(2) as the assessment is mandatory under this Chapter. [Para 31; 9.5 We also find support and guidance from the judgment of Hon ble Kerala High Court in the case of Lally Jacob v/s ITO reported in 197 ITR 439 wherein it was held as under: A reading of sections 147 and 148 makes it clear that, at any rate, an assessment for the first time made by resort to section 147 is a regular assessment. Section 148 enjoins the Income-tax Officer before making an assessment under section 147 to serve a notice on the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court, it is held as under (page 370) : The case of the Revenue is that the expression 'so far as may be apply' indicates that it is not expected to follow the provisions of section 142, sub-sections (2) and (3) of section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression' so far as may be apply'. In our view, where the Assessing Officer in repudiation of the return filed under section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143.; 9. In the instant case, we notice that both the Commissioner of Income-tax (Appeals) and the Tribunal have held that the procedure prescribed of issuance of notice under section 143(2) has not been followed at all. This realm of fact has not been disputed by the Revenue. In view of this decision of the apex court, the assumption of the jurisdiction of issuance of notice of reopening itself would not be sustainable, and, therefore, this court does not require to indulge into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is inadmissible, he is required to serve a notice to the assessee specifying particulars of such claim and a date on which he should produce or cause to be produced, any evidence or particulars specified therein on which the assessee may rely in support of such claim. Further, from the language employed in section 292BB of the Act, it emerges that a notice would be deemed to be valid in the three circumstances provided therein, namely, where the assessee has participated in the proceedings it would not be permissible for him to raise objection that (i) the notice was not served upon him; or (ii) was not served upon him in time; or (iii) was served upon him in an improper manner Thus, all the circumstances contemplated under section 292BB of the Act are in a case where a notice has been issued, but has either not been served upon the assessee or not served in time or has been served in an improper manner. The said provision clearly does not contemplate a case where no notice has been issued at all In the facts of the present case, if the contention of the assessee were to be accepted, it would amount to dispensing with the notice under section 143(2) of the Act in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be issued within limitation fixed under the Act. In absence of issuance of the notice under the proviso to section 143(2) of the Act within a period of 12 months from the end of the month in which return was furnished by the assessee, the proceedings initiated by the Assessing Officer with regard to block assessment period 1.4.1997 to 25.7.2002 on the basis of notice issued on 6.7.2006 under section 143(2), after about 20 months, was time barred and the entire proceedings in pursuance of such notice is null and void.; 9.11 In view of the above, we conclude that it was mandatory to issue the statutory notice under section 143(2) of the Act within the prescribed time and such defect cannot be cured under the provisions of section 292BB of the Act. The Ld. DR has also not brought anything on record contrary to the arguments advanced by the Ld. AR for the assessee. Thus in the absence of the statutory notice, the assessment framed under section 143(3)/147 of the Act is not sustainable. Hence the ground raised by the Revenue is dismissed. 10. In the result the appeal filed by the Revenue is dismissed. Order pronounced in the Court on 28/06/2021 at Ahmedabad. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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