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TMI Blog2017 (4) TMI 1637X X X X Extracts X X X X X X X X Extracts X X X X ..... OUNTANT MEMBER AND KULDIP SINGH JUDICIAL MEMBER For the Assessee by : Shri P.Venugopal Rao, AR For the Revenue by : Shri A.K.Mohapatra, CIT, DR ORDER Per N.S.Saini, AM These are appeals filed by the assessee against separate orders of CIT(A)-1, Bhubaneswar, both dated 30.6.2015, for the assessment years 2008-09 & 2009-2010, respectively . 2. At the outset, it was argued by the ld Authorised Representative of the assessee about the reopening of the assessment by issue of notice u/s.148 of the Act dated 21.10.2014 for the assessment year 2008-09 and dated 22.10.2014 for the assessment year 2009-2010. The Assessing Officer completed the assessment for the assessment year 2008-09 u/s.143(3)/147 of the I.T.Act, 1961 on 27.3.2014 and for the assessment year 2009-2010 on 30.1.2015 u/s.143(3)/147 of the I.T.Act, 1961 without issuing notice u/s.143(2) of the Act. He referred to page 21 of the order of the CIT(A) for assessment year 2008-09 and page 18 of the order of the CIT(A) for assessment year 2009-2010 and pointed out therefrom that the CIT(A) has stated that since no return was e-filed, it may not be possible to generate notice u/s.143(2) through the system. However, during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act are not as per the scheme of the provisions of section 147 and 148 of the Act. 6. He further relied on the decision of Hon'ble Delhi High Court in the case of Ashok Chaddha vs ITO, (2012) 337 ITR 399 (Del) and submitted that the Hon'ble High Court has held that issue of notice/s.143(2) is not mandatory for finalisation of assessment under section 153A of the Act. 7. He further relied on the decision of Mumbai Third Member Bench of the Tribunal in the case of Smt. Sumanalata Bansal vs. ACIT in ITA Nos.525 to 530/Mum/2008 for assessment years 1999-2000 to 2005-06 and submitted that the Tribunal held that issue of notice u/s.143(2) of the Act is not mandatory before completing assessment u/s.153A of the Act. 8. We have heard the rival submissions and perused the orders of lower authorities and materials available on record. 9. In the instant case, the assessment for the assessment years 2008- 09 and 2009-2010 was reopened by issuance of notice u/s.148(2) of the Act dated 21.10.2014 for the assessment year 2008-09 and dated 22.10.2014 for the assessment year 2009-2010. Thereafter, the reassessment order for both the assessment years under consideration was passed u/s.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Commission [1969] 2 AC 147, which has been approved by the Hon'ble Supreme Court in several judgments. 33. The extended question then is whether even if the assessee is deemed to have participated in the proceedings under Section 143, even without the Assessing Officer having issued the mandatory notice, would the Revenue be entitled to the benefit provided under Section 292BB of the Act. Section 292BB creates an estoppel against the assessee in claiming that no notice has been served on him, if he has participated in the proceedings. However, the said section does not in any manner grant any privilege to the Assessing Officer in dispensing with the issuance of a notice under Section 143(2) of the Act. Since the jurisdiction under Section 143 is founded on the issuance of a notice under Section 143(2), the assessing officer could have assumed jurisdiction only after issuing a notice under Section 143 (2). Even the participation of the assessee would not provide the benefit under Section 292BB to the Revenue. The requirement that a notice be issued is mandatory and the Assessing Officer has no other option but to issue the notice before commencing the jurisdiction. Here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory and is not a procedural irregularity and the same is not curable and, therefore, the requirement of notice u/s.143(2) cannot be dispensed with. The Hon'ble High Court finally concluded as under: " The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the assessee u/s.143(2) of the Act subsequent to 16th December 2010 when the assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under section 148 of the Act, is fatal to the order of reassessment." 13. As far as the reliance of the department on the decision of Hon'ble Delhi High Court in the case of CIT vs Madhya Bharat Energy Corporation Ltd., (2011) 337 ITR 389 (Del), we find that Hon'ble Delhi High Court in the case of Shri Jai Shiv Shankar Traders Pvt Ltd.,(supra) in para 9 of the order has stated that Hon'ble Delhi High Court in the case of CIT vs. Madhya Bharat Energy Corporation by order dated 17.8.2011 in review petition No.441/2011 in ITA No.950/2008, whereby the Court reviewed its main judgement in the matter rendered on 11th July, 2011 on the ground that the said appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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