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TMI Blog2018 (10) TMI 2043X X X X Extracts X X X X X X X X Extracts X X X X ..... herein it was held that issuance of notice under section 143(2) of the Act is mandatory, if the AO seeks not to accept any or part of the return of income as furnished by the assessee or makes an assessment order contrary thereto and even in the course of re-assessment proceedings, such notices cannot be dispensed with. Provisions of section 292BB must be understood to cure any defect in the service of the notice and not authorized to dispensation of notice. In this case, the authorities below have accepted the fact that no notice u/s 143(2) has been issued, therefore, we are of the considered view that the reassessment order passed 147 without issuance of notice u/s 143(2) of the Act is void ab initio. Decided in favour of assessee. - SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For the Assessee : Shri Jayant M. Rande For the Revenue : Shri R.K. Baral ORDER PER G. MANJUNATHA, A.M. This appeal filed by the assessee is directed against order dated 18th September 2017, passed by the learned Commissioner (Appeals)- I, Nagpur, for the assessment year 2010-11. The assessee has raised the following grounds of appeal: 1. On the facts and in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lac to Shri Barde but denied the same. -He has further giving opportunity to cross examination of Shri Barde but he has not attended in response to summon u/s 131 giving opportunity for cross examination. Considering the facts of the case, statement of oath of Shri Barde, sequence of events such as date of sale deed and date of cash deposits of Shri Barde in saving bank account, it is clear that the assessee has made cash payments of Rs. 27 lac to Shri Barde against the purchase of agricultural land. The assessee has further failed to submit details of sources of cash available with him but submitted only details of Rs.3,89,0001- only of F.Y.2009-10 thus, hence remaining cash of Rs. 23,11,000/- is treated as assessee undisclosed cash and concealed income and same is added to the total income of assessee. The assessee has not shown his true and correct income and concealed the income, the penalty proceedings Vis 271(1)(c) of the IT Act, 1961 is initiated separately. Aggrieved by the assessment order so passed by the Assessing Officer, the assessee preferred appeal before the first appellate authority. 3. The assessee, before the learned Commissioner (Appeals), filed additional grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of notice under section 143(2) of the Act to make the re-assessment proceedings void particularly so when the assessee himself has consciously and intentionally waived-off his rights to object to these procedural irregularities. The relevant observations of the learned Commissioner (Appeals) are extracted herein below:- 6.0 Appellant s submissions along with assessment order and remand report of the A.O. have been considered carefully. Decision of the Hon ble Delhi High Court in case of Pr.CIT i.e., Jai Shiv Shankar Traders Pvt. Ltd. (supra) has also been perused. There is no denying the fact that notice u/s 143(2) has not been issued by the A.O. in the appellant s case till passing of assessment order on 18.03.2014 for the year under consideration. Having said this, it is noticed that the impugned assessment order has been passed in response to notice u/s 148 of the Act where the appellant has not filed return within prescribed period of 30 days from date of first notice i.e., 7.11.2012. The return, declaring same original income of Rs. 4,97,190, been filed after a lapse of more than one year on 03.12.2013. Even the original return filed on 17.03.2012 is beyond due date u/s 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the appellant having submitted to the jurisdiction of the Assessing Officer and when on appearing before him, participating in the proceedings on each date of hearing which lasted for about four months and raising all possible pleas on the merits of the case with the assistance of CA but not raising any objection as to irregularity in proceedings for non issue / receipt of notice on the appellant, the issue of notice cannot be decided in favour of the appellant now. Thereafter, even in appeal filed on 21.04.2014 challenging the assessment order, the appellant has not raised any ground of illegality of proceedings on non issue of notice but raised all grounds on the merits in the memo of appeal. The ground relating to the notice has sought to be raised as additional ground of appeal as late as on 03.03.2016 i.e. after 2 years of filing of appeal. In the instant case, there is valid issue of notice u/s 148 of the Act for initiation of reassessment proceedings and issue of such notice is not in dispute. It is also not the case of the appellant that no proper opportunity has been given by the AO. Also original return as well as subsequently return filed in response to notice u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is consciously and intentionally waived-off his right to object procedural irregularities before the Assessing Officer by participating in the assessment proceedings, then, the said procedural lapse cannot be called into question in appellate stage, more particularly, when the assessee has been given adequate opportunity to file evidences / details in support of his return of income. The learned Commissioner (Appeals) has not disputed the fact that the law mandates issuance of notice under section 143(2) of the Act when the return of income is taken up for scrutiny assessment. When the law is very clear on the aspect of issuance of notice under section 143(2) of the Act, if the Assessing Officer seeks not to accept any part of the return of income as furnished by the assessee or makes an assessment order contrary thereto and even in the course of re-assessment proceedings, such notices are required to be issued. This legal position has been clarified by the Hon'ble Supreme Court in Hotel Blue Moon (supra) wherein it was held that if the Assessing Officer, for any reason, repudiate the return of income filed by the assessee in response to the notice under section 158BC(a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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