Case Law Details
Shri Gaurav Kumar Vs ITO (ITAT Jaipur)
The issue under consideration is whether AO can issue notice under section 148 for re-assessment without issuing notice u/s 143(2)?
ITAT states that the assessee filed its return of income in response to the notice u/s 148 of the Act. The AO had concluded the assessment without issuing notice under section 143(2) of the Act after the return was filed by the assessee in response to notice under section 148 of the Act. The AO after receiving the return of the appellant filed in pursuance to notice u/s 148 of the Income Tax Act, 1961 did not issue notice u/s 143(2) of the Act which is sine qua non for assuming jurisdiction to assess the case. This is a grave error which is even not rectifiable u/s 292BB of the Act and hence order so passed lacks proper authority with the AO and hence the order so passed deserves to be declared void ab initio. In case of reassessment proceedings also once the assessee furnishes his return, same is considered as a return required to be furnished u/s 139 and for proceeding further in a case of return filed u/s 139 the AO is supposed to issue notice u/s 143(2) for assuming jurisdiction to assess the case. In case of non-issuance of such vital notice no assessment can be framed by the AO as the same lacks authority for the same. Further such vital defect cannot be cured even by resorting to the provisions of section 292BB as the provisions of section 292BB are applicable in those cases where notice was issued but not served. In the present case since no notice was ever issued and hence such defect cannot be cured. Hence, Without issue of notice U/s 143(2) completing the reassessment proceedings are liable to be quashed.
In the result, the appeal of the assessee is allowed.
FULL TEXT OF THE ITAT JUDGEMENT
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