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TMI Blog2023 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... As per the provision, the AO is required to call upon the assessee within a defined period, to furnish a return of his income or income of any other person, in respect of which he is assessable, under this Act during the relevant AY. The return filed is, in law, considered as if it was furnished u/s139 of the Act. The reassessment proceedings can only commence once notice under Section 148 of the Act is issued. It is, clearly, a step which the AO is required to take before he assumes jurisdiction; inter alia, for reassessing the case. Non issue of notice for reopening is not a curable defect u/s 292B. Undoubtedly, there is a misstep on the part of the AO since the AO has not assumed jurisdiction as per law. Therefore, we have no h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that this jurisdictional error occurred, was flagged by the petitioner/assessee in its reply dated 29.04.2023. [See Annexure P-13, appended page 266 of the case file]. 7. Issue Notice. 7.1. Mr Sanjeev Menon, learned standing counsel, who appears on behalf of the respondents/revenue accepts notice. 8. Mr Menon says that he will return with instructions. If instructions are received to resist the writ petition, a counter-affidavit will be filed before the next date of hearing. 9. In the meanwhile, no coercive measures will be taken against the petitioner. 10. List the matter on 28.07.2023 3. As would be evident from the above extract, it is the petitioner s case that the notice has jurisdictional errors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverts to the order dated 29.07.2022 issued under Section 148A(b) of the Act and, in this regard, reference is made to the following Document Identification Number (DIN): ITBA/COM/F/17/2022-23/1044258302(1). Concededly, the correct DIN is ITBA/COM/F/17/2022-23/1044258434(1). 8. Clearly, the impugned notice issued under Section 148 of the Act does not concern the assessee. 9. We may note that the respondents/revenue seeks to defend its position by adverting to the intimation letter dated 29.07.2022. Mr Menon says that this letter is addressed to AVS i.e., the petitioner. It is also submitted that the intimation letter seeks to inform AVS that the notice dated 29.07.2022 has been issued to it under Section 148 of the Act. 9.1 In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T/M/148_1/2022-23/1044294921(1) ., has not seen the light of the day. 14. As indicated above, the only notice that the petitioner received under Section 148 of the Act is the impugned notice. The fact that the notice under Section 148 is a jurisdictional notice emerges on plain reading of the provision. For the sake of convenience, the relevant part of Section 148 of the Act is extracted hereafter: Issue of notice where income has escaped assessment. 148. Before making the assessment, reassessment or re-computation under section 147, and subject to the provisions of section 148A, the Assessing Officer shall serve on the assessee a notice, along with a copy of the order passed, if required, under clause (d) of section 148A, requiring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly, a step which the AO is required to take before he assumes jurisdiction; inter alia, for reassessing the case. 17. Insofar as the reliance placed on Section 292B is concerned, the observations made in Commissioner of Income Tax v Spirit Global Construction Pvt. Ltd 2023: DHC:4914-DB rendered in the context of Section 292B of the Act, being apposite, are extracted hereafter: 23.1 A mistake, which can be corrected under Section 292B of the Act, should be such that if excised it does not change the tenor and scope of the documents/proceedings referred to therein i.e., the return of income, assessment, notice, summons or other proceedings, taken, furnished or made or issued or taken or purported to have been furnished or made or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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