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TMI Blog2024 (1) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... tion u/s 292BB - The said Section 292BB of the Act deals with (a) non service of notice (b) non service of notice in time (c) service of notice in an improper manner- but in the present case the issue is regarding non-issuance of notice itself and there is nothing on record to prove that the notice u/s 143(2) of the Act has been issued by the Assessing Officer. Therefore, in our considered opinion, the protection under section 292BB of the Act is not available to the Department in the case on hand. Thus as Department has not produced any evidence to show that the notice u/s 143(2) of the Act has been issued to the assessee, the assessment orders passed for the assessment years 2009-10 to 2012-13 are hereby quashed. - DR. B.R.R. KUMAR, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER For the Appellant: Shri Anil Gupta, FCA For the Respondent : Shri Sravan Gotru (Adjournment) ORDER PER YOGESH KUMAR U.S.:J.M. The above appeals filed by the assessee against the orders of learned CIT(A)-1, Jabalpur all dated 19/02/2018 for the assessment years 2009-10 to 2012-13. The assessee has raised common grounds in all the appeals, which are reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eserve to be cancelled as held by the various judgments of the Hon ble Supreme Court, Hon ble Jurisdictional High Court, other High Courts and Special Benches decision of the ITAT. The relevant portion of the various judgments of the Hon ble Courts are reproduced as under:- 5.1 ACIT Anr. vs. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)] Held: It is mandatory for the AO to issue notice u/s 143 (2). The issuance and service of notice u/s 143 (2) is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid Reassessment-----Notice-----Assessee intimating original return be treated as fresh return---Reassessment proceedings completed despite assessee filing affidavit denying serviced of notice under section 143(2)---- Assessing Officer not representing before Commissioner (Appeals) that notice had been issued----Reassessment order invalid due to want of notice under section 143(2)---Income-tax Act, 1961, ss. 143, 147, 148(1), prov.-- --ITO v. R.K. GUPTA [308 ITR 49 (Delhi)Tribu., 5.2 DIT vs. Society For Worldwide Interbank Financial Telecommunications in ITA 441 OF 2010 (Delhi High Court) [(2010) 323 ITR 249] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly as if such return were a return required to be furnished under Section 139 . Thus, understanding this provisions in the background of the decision of the Apex Court, on the facts available, we are of the view that in completing the assessment under Section 148 of the Act, compliance of the procedure laid down under Sections 142 and 143 (2) is mandatory. On the admitted fact that beyond notice under Section 142(1), there was no notice issued under Section 143(2), and in the light of the fact that the very basis of the reassessment was the failure on the part of the assessee in not disclosing the capital gains arising on the transfer of property for assessment and that admittedly the assessee had requested the officer to accept the original return as a return filed in response to Section 148 of the Act, we hold that there was total failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is mandatory one as held by the Apex Court. 5.7 Alpine Electronics Asia Pte Ltd. vs. DGIT Ors: [(2012) 341 ITR 247 (Del) Held: The service of notice u/s 143(2) within the statutory time limit is mandatory and is not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued u/s 143(3) and there being no waiver, there is no justifiable ground to accept the view of the Tribunal that there was a waiver of right of notice to be issued u/s 143(2) of the Act. 5.10 The interplay of Sections 143 (2) and 148 of the Act formed the subject matter of at least two decisions of the Allahabad High Court. In CIT v. Rajeev Sharma (2011) 336 ITR 678 (All.) it was held that a plain reading of Section 148 of the Act reveals that within the statutory period specified therein, it shall be incumbent to send a notice under Section 143(2) of the Act. It was observed: the provisions contained in sub-Section (2) of Section 143 is mandatory and the legislature in their wisdom by using the word 'reason to believe' had cast a duty on the Assessing Officer to apply mind to the material on record and after being satisfied with regard to escaped liability, shall serve notice specifying particulars of such claim. In view of the above, after receipt of return in response to notice under Section 148, it shall be mandatory for the AO to serve a notice under sub-Section 2 of Section 143 assigning reason therein. In absence of any notice issued under sub-Section 2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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