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TMI Blog2025 (3) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of notice u/s 143(2) is mandatory for scrutiny assessment even if the assessments are after search u/s 132(1) of the Act
Accordingly we set aside the order of CIT(A) on this issue by holding that the notice issued u/s 143(2) is barred by limitation and therefore the consequent assessment framed is also invalid and is quashed. Appeal of the assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 months from the end of the financial year for which the return was furnished. The ld. CIT (A) dismissed the appeal of the assessee by holding that the delayed issuance of notice on 16.01.2023, would not invalidate assessment proceeding and the consequent assessment framed as the provisions of Section 292BB of the Act cure the defects which is procedural defect and moreover, the assessee participated in the assessment proceeding. The ld. CIT (A) after taking into account the contentions of the assessee dismissed the appeal of the assessee by observing and holding as under:- "7.2. Findings on Ground of Appeal 1: 7.2.1. The assessee submitted that the assessment is bad in law and should be quashed and assessment to be held invalid as no notice u/s 143(2) was issued within the time allowed under the statute when the assessee duly complied with the notice by filing a letter dated 25.3.2022 that the original return filed by the assessee u/s 139 on 31-10-2018 vide e-filing acknowledgement No 364691911311018 be treated as return u/s 148 which was sufficient compliance under the law. The assessee submitted that AO has issued notice u/s 143(2) issued on 16.1.2023 well beyond the time p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer On the other hand, Mr Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 29288 of the Act 9. According to Section 29288 of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee. In the present case, the return of income was filed by the assessee on 25.03.2022. The ld. Counsel for the assessee therefore submitted that the financial year ended on 31.03.2022 and three months in terms of first proviso to Section 143(2) expired on 30.06.2022, and accordingly, the notice u/s 143(2) of the Act was barred by limitation. The ld. AR while strongly assailing the conclusion drawn by the ld. CIT (A) to the fact that the notice issued beyond the permissible time limit under first proviso to Section 143(2) of the Act is curable defect which has taken care of the provisions of Section 292BB of the Act as assessee has also participated in the assessment proceedings. The ld. AR submitted that the ld. CIT (A) relied on the decision of CIT Vs Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC), wherein it was held by the Hon'ble Supreme Court that for section 292BB to apply, section 143(2) notice must have emanated from department and it is only infirmities in manner of service of notice that section seeks to cure and it is not intended to cure complete absence of notice itself. The ld. AR submitted that in the said decision the Hon'ble Apex Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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