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The Tax Publishers2017 TaxPub(DT) 0709 (Asr-Trib) : (2017) 055 ITR (Trib) 0097 Anil Kumar v. ITO INCOME TAX ACT, 1961 --Reassessment--ValidityFailure to issue notice under section 143(2)----Where notice under section 143(2) was not issued, reassessment order passed was invalid.--Assessee filed return in pursuance of notice under section 148. AO framed assessment without service of notice under section 143(2). Assessee challenged the assessment on this count. AO pleaded that there was no time available with him to serve a notice under section 143(2) since assessment proceedings were going to become barred by limitation and filing the return just two days before the time barring date was nothing but a pure mischief to thwart the attempt of the Department to bring to tax concealed income, therefore, return was invalid. *Held :Entries in the order-sheet indicated that the AO on the basis of the returns filed required assessee to furnish certain information and after considering the replies of the assessee AO had passed the order. In view of these facts and circumstances plea of Department that the returns filed by the assessee were invalid returns did not hold any force as AO could have issued notice under section 143(2) on the date on filing of return itself. Therefore, assessment was not valid. Income Tax Act, 1961* Section 147 *REFERRED :* FAVOUR : In assessee's favour A.Y. : 2004-05 & 2005-06 INCOME TAX ACT, 1961 --Validity of assessment, etc.--Non-serving of notice under section 143(2)----Omission on the part of AO to issue notice under section 143(2) was not a procedural irregularity, therefore, not curable by taking recourse to deeming fiction under section 292BB.--Question arose for consideration was whether non-serving of notice under section 143(2) could be cured by taking recourse to deeming fiction under section 292BB.Held: Section 292BB cannot obviate requirement of complying with a jurisdictional condition. For the AO to make an order of assessment under section 143(3), it is necessary to issue a notice under section 143(2) and in the absence of a notice under section 143(2) the assumption of jurisdiction itself would be invalid omission on the part of AO to issue notice under section 143(2) was not a procedural irregularity, therefore, not saved by section 292BB,. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2017 TaxPub(DT) 0709 (Asr-Trib) : (2017) 055 ITR (Trib) 0097

Anil Kumar v. ITO

INCOME TAX ACT, 1961

--Reassessment--ValidityFailure to issue notice under section 143(2)----Where notice under section 143(2) was not issued, reassessment order passed was invalid.--Assessee filed return in pursuance of notice under section 148. AO framed assessment without service of notice under section 143(2). Assessee challenged the assessment on this count. AO pleaded that there was no time available with him to serve a notice under section 143(2) since assessment proceedings were going to become barred by limitation and filing the return just two days before the time barring date was nothing but a pure mischief to thwart the attempt of the Department to bring to tax concealed income, therefore, return was invalid. Held :Entries in the order-sheet indicated that the AO on the basis of the returns filed required assessee to furnish certain information and after considering the replies of the assessee AO had passed the order. In view of these facts and circumstances plea of Department that the returns filed by the assessee were invalid returns did not hold any force as AO could have issued notice under section 143(2) on the date on filing of return itself. Therefore, assessment was not valid.

Income Tax Act, 1961 Section 147

REFERRED :

FAVOUR : In assessee's favour

A.Y. : 2004-05 & 2005-06

INCOME TAX ACT, 1961

--Validity of assessment, etc.--Non-serving of notice under section 143(2)----Omission on the part of AO to issue notice under section 143(2) was not a procedural irregularity, therefore, not curable by taking recourse to deeming fiction under section 292BB.--Question arose for consideration was whether non-serving of notice under section 143(2) could be cured by taking recourse to deeming fiction under section 292BB.Held: Section 292BB cannot obviate requirement of complying with a jurisdictional condition. For the AO to make an order of assessment under section 143(3), it is necessary to issue a notice under section 143(2) and in the absence of a notice under section 143(2) the assumption of jurisdiction itself would be invalid omission on the part of AO to issue notice under section 143(2) was not a procedural irregularity, therefore, not saved by section 292BB,.