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TMI Blog2023 (9) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... was 30/09/2018. Thus, in our opinion as per proviso to Section 143(2) of the Act, the notice issued u/s 143(2) of the act dated 15/10/2018 by the AO is time barred. As decided in Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT] and Chetan Gupta [ 2015 (9) TMI 756 - DELHI HIGH COURT] held that failure to adhere to the time limit as prescribed under proviso to Section 143(2) of the Act results non-est of the assessment order. Thus, by following the above ratio of the Hon ble Supreme Court and jurisdictional High Court (supra), we find no error or infirmity in the order of the CIT(A) in deleting the addition. CIT(A) has committed no error in allowing appeal of the assessee in holding that notice issued u/s 143(2) of the Act was time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 153C was issued for the assessment year 2017-18. 6. The ld. CIT(A) has erred in observing that there was no mention of date of filing of return in notice u/s 143(2) of the 1.T. Act which has been selected for scrutiny without appreciating that this defect is curable u/s 292BB of the I.T. Act since the assessee has not raised any objection before completion of assessment, this issue has been raised by the assessee first time before the ld. CIT(A). 3. Brief facts of the case as mentioned in the assessment order that the original return was filed by the assessee u/s 139(1) of the Act ( Act for short) declaring income of Rs. 7,89,540/-. A search was conducted in the case of Akash Arora on 04/01/2017, during the course of search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f calling to return/information. He did not raise this issue at the time of proceedings. The proceedings started on 07.02.2018 and the order was passed on 28.12.2018 for 10 months. When he was attending to AO for 10 months, why he did not raise any objection? Please refer to Para 5.10 of AO s order which speaks very clearly, how the assessee was directing Shri Akash Arora to by bullion from M/S Jain Abhusan Pvt. Ltd. and Jindal Billion. This proves that the unaccounted money belongs to assessee. During assessment proceedings the assessee knew ail these facts and therefore avoided cross examination of Shri Akash Arora, even after he himself requested for it. 4. The CIT(A) simply ignored all these glaring facets and proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(2) of the Act being issued on 15/10/2018 by the Assessing Officer was time barred as rightly held by the Ld. CIT(A) in his order. The Ld. Counsel for the assessee also relied on following judicial pronouncements: ACIT Anr. Vs. Hotel Blue Moon reported in 321 ITR 362 (SC) CIT Vs. Chetan Gupta reported in 382 ITR 613 (Del) 6. We have heard both the parties and perused the material available on record. The following facts are not disputed, the return of income filed by the assessee belatedly u/s 139(4) of the Act on 07/02/2018 and notice u/s 143(2) of the Act was issued on 15/10/2018 by the A.O. The issuance of the notice u/s 143(2) is beyond the limitation as per proviso to section 143(2) of the Act i.e., with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise any objection regarding limitation during the assessment proceedings. Therefore, the assessee cannot raise the objection/ground on the issue of time barring to notice u/s 143(2) before the Ld. CIT(A) , we are not impressed with the submission made by the Ld. DR since, the A.O. is bound to follow limitation prescribed in the provisions of the Act while issuing the notice u/s 143(2) of the Act and the ratio laid down by the Hon ble Supreme Court in the case of ACIT Anor. Vs. Hotel Blue Moon reported in 321 ITR 362 (SC) and Hon ble Delhi High Court in the case of CIT vs. Chetan Gupta reported in 382 ITR 613 (Del) negates the submissions made by the Ld. DR. Thus, we are of the opinion that the Ld. CIT(A) has committed no error in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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