9911796707
TMI Blog2023 (2) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Assessing Officer on dated 01.01.2015 to the application dated 29.12.2014, it has been mentioned that there is no notice issued u/s. 143(2) - we realize that it is just a reply but not the determination of the facts by which it can be presumed that no notice u/s. 143(2) of the Act has ever been issued to the Assessee in the assessment proceedings. Hence, we deem it appropriate to remit the additional grounds/issue raised by the Assessee before us, to the file of the ld. Commissioner for adjudication by examining the facts qua notice u/s 143(2) of the ACT. X X X X Extracts X X X X X X X X Extracts X X X X ..... Cost of inflation as per Indexation price (Rs.4,32,000 x 519/331) Rs. 6,77,365/- To this the following, as shown, will also be added- i) Director's remunerations from M/s Raj Mahal Motels Pvt. Ltd. as shown Rs.1,20,000/- ii) Net rental income for house No.88, Hill Street, Meerut Cantt. and house No.257, Circular Road, Meerut as shown in net Rs.75,600/- iii) Income from other sources as disclosed in the original return Rs.10,000/- Gross total income / Net assessable income Rs.88,98,235/- Or r/o Rs.88,98,240/- 3. The Assessee, being aggrieved, challenged the Assessment order passed by the Assessing Officer in appeal before the ld. Commissioner mainly on the notice u/s. 148 of the Act. The ld. Commissioner by analyzing the factual aspects of the case, dismissed the appeal of the Assessee, by concluding as under: 3. Decision and reasons: Grounds nos. 1 to 5 I have carefully considered the submissions made by A.R in appellate proceedings and material placed before A.O in assessment proceedings. The appellant has taken the ground of validity of proceedings u/s 148 of The Act on account of validity of service of notice u/s 148 of The Act and framing of order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of this appeal, filed an application dated 06.10.2022 alongwith a duly sworn affidavit dated 06.10.2022, for admission of additional grounds, which reads as under : "1. That having regard to the facts and circumstances of the case, Ld. A.O. has erred in law and in facts in framing the impugned reassessment order and that too without assuming jurisdiction as per law and without complying with mandatory conditions u/s 143(2) of the Act.(Affidavit Encl.) 2. That having regard to the facts and circumstances of the case, Ld. A.O. has erred in law and on facts in reopening of the assessment of Assessee and that too without issuing the mandatory notice u/s 143(2), that too within the time stipulated under the provision." 4.1 The Assessee by raising additional grounds of appeal raised the issue that in the instant case, the Assessing Officer has not assumed the jurisdiction as per law and without complying with the mandatory conditions as set out u/s. 143(3) of the Act. Further, the Assessing Officer has erred in law and on facts in reopening the assessment of the Assessee and that too without issuing the mandatory notice u/s. 143(2) of the Act, that too within the time stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(2) of the Act. 5.2 The Assessee challenged the assessment order before the ld. Commissioner on merit as well as on the ground of validity/not serving of the notice u/s. 148 of the Act. However raised the issue qua non-issuance of notice u/s. 143(2) of the Act, first time before us only. 5.3 The claim of the Assessee is that before finalizing an assessment order u/s. 143(3) of the Act, issuance of notice u/s. 143(2) of the Act is mandatory and in the absence of notice u/s. 143(2) of the Act, the assessment order shall be void ab initio. The Assessee in support of its contention, also relied upon the judgment passed by Hon'ble Allahabad High Court in the case of U.P. State Industrial Development Corporation Ltd. vs. CIT-II, Kanpur, 2016 SCC Online (All) 2348. 6. On the contrary, the ld. DR refuted the claim of the Assessee by submitting that it may be possible that inadvertently, the Assessing Officer has mentioned in reply that there is no notice issued u/s. 143(2) of the Act. Therefore, without seeing the reply minutely and in detail, the case cannot be decided alone on the basis of said contents of the reply referred to above. The ld. DR further claimed that once the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act would become otiose and will not save the Assessment Order. Hence, on the aforesaid analysis, we are of the considered view that issuance of notice u/s. 143(2) before passing an assessment order u/s. 143(3), is mandatory and if no notice has ever been issued u/s 143(2) of the Act, then as per legal fiction as enumerated u/s. 292BB of the Act as well, the participation in the assessment proceedings and/or not challenging the assessment proceedings before passing Assessment order or Appellate proceedings before Ld. Commissioner, on the ground of non-issuance of notice or nonservice of notice within time or service of notice in improper manner u/s. 143(2) of the Act, would not validate the Assessment order and would also not curtail the rights of the Assessee to challenge the same on the point of notice u/s 143(2) of the Act, before the higher Court(s). 7.3 Coming to the instant case, in the assessment order, in reply given by the Assessing Officer on dated 01.01.2015 to the application dated 29.12.2014, it has been mentioned that there is no notice issued u/s. 143(2) of the Act. However, we realize that it is just a reply but not the determination of the facts by which it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
