Case Law Details
Admittedly no notice u/s 143(2) was issued to the assessee and only notice u/s 142(1) was issued and on this aspect the ITAT in the case of Silver Line (supra) in para 7.1 of its order has observed as under:
“7.1. Now, the moot question for consideration is: Whether the non-issuance of a notice u/s 143(2) of the Act as alleged by the assessee-firm had vitiated the conclusion of the assessments u/s 147 read with s. 143(3) of the Act? On receipt of information from the DIT (Inv), Jaipur that there were alleged bogus purchases resorted to by the assessee firm, the AO had reopened the assessments of the assessee for the assessment years under dispute by issuance of notices u/s 148 of the Act. Subsequently, notice u/s 142(1) of the Act along with questionnaire was issued to the assessee. In the reassessment proceedings, after having considered the asssessee’s submissions, the AO had concluded the re-assessments making certain additions. While doing so, however, no notices u/s 143(2) of the Act were issued to the assessee, even though notice u/s 142(1) of the Act was ordered to be issued on 14.11.2011. This was apparent from the perusal of the Order Sheet for the AY 2005-06 [Source: P 88 of PB-I ARl. This fact has been admitted by the Revenue through a RTI query by the assessee firm [Refer: P 165 of PB AR (A.Y.2006-07)]. The above sequence of events categorically proves that notice u/s 143(2) of the Act was neither issued nor served on the assesee.”
Further we find that in the case of Naseman Farms Pvt. Ltd. (supra), the ITAT in para 15 of its order has observed as under:
15. In the light of the above, we are of the view that the AO has not issued notice u/s. 143(2) of the Act which is mandatory. We are also of the view that in completing the assessment u/s. 148 of the Act, compliance of the procedure laid down u/s. 142 and 143(2) is mandatory. As per record, we find that there was no notice issued u/s. 143(2) of the Act which is very much essential for reassessment and it is a failure on the part of the AO for not complying with the procedure laid down in section 143(2) of the Act. If the notice is not issued to the assessee before completion of the assessment, then the reassessment is not sustainable in the eyes of law and deserves to be cancelled. In view of above facts and circumstances of the present case, the issue in dispute raised in additional ground relating to non issue of the mandatory notice u/s. 143(2) of the Act is decided in favour of the assessee and we hold that the impugned assessment order dated 31.12.2009 passed u/s. 147/143(3) of the Act by the AO as invalid. Our view is supported by the various judgments of the Hon’ble Supreme Court, and Hon’ble Jurisdictional High Court. The relevant portion of the head- notes of various judgments of the Hon’ble Courts are reproduced as under:-
“ACIT & Anr. VS. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)]
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DEAR SIR,
1) ASSESSEE IS PVT LTD COMPANY FILED RETURN FOR ASSESSMENT YEAR 2012-13 ON 08/01/2013.
2)THE RETURN WAS PROCESSED u/s 143(1)
3) CASE SELECTED FOR SCRUTINY u/s 143(2) ISSUED ON 08/08/2013 (ASSESS FILED BASIC DETAILS.ATTENDED ON 21/08/2013
4)FRESH NOTICE U/S 142(1) ISSUED ON 27/01/2014.RESPONSE TO NOTICE ATENDED ON 7/2/2014,17/09/2014,30/11/2014
5) REFUND RECEIVED ON 21/02/2014.
6) NOTICE 142(1) DT 24/12/2014 CONSEQUENT TO THE CHANGE IN TERRITORIAL JURISDICTION w.e.f (15/11/2015) which is wrong date mentioned in letter) correct date is 15/11/2014.CASE IS ASSESSED IN THE CHARCH CIT – WITH ACIT.DATE FOR COMPLIANCE 06/01/2015.
7)ACIT DISALLOWED DEDUCTION CLAIMED US/80IC/IE , charged interst U/S 234B,234C & 234D & ALSO PROCEEDING u/s 271 (1) (C) & ORDER DEMAND NOTICE ISSUED ON 27/03/2015 & ASSESSMENT MADE u/s 143(3)
8) REASON FOR THE ABOVE ASSESS NOT FURNISHED ANY REASONABLE CASUSE THAT PREVENTED THE ASSESS TO FILE THE RETURN u/s 139(1) IN TIME.ASSESS HAS FILED THE APPLICATION WITH CBDT ON 17/03/2015 ONLY AFTER RECEIVING THE SHOW CAUSE ABOUT REJECTION OF CLAIM u/s 80ic of the act & is not suo moto.
SIR,
AS PER ARTICLE IN TAXGURU
Time limit for issuing of Notice u/s 143(2): As per section 143(2) as amended by the finance act 2008 with effect from 01-04-2008 the notice under section 143(2) must be served upon the assessee within 6 months from the end of relevant Assessment year. Earlier the notice was required to be served within 12 months from the end of the month in which the return was furnished.
The notice u/s 143(2) must be received by the assessee now up to 30th September for the preceding Assessment year. If the notice u/s 143(2) is received within the prescribed time then no Assessment can be framed u/s 143(3).
PARTY FILED APPLICATION WITH CBDT ON 17/03/2015.FOR CONDELLATION OF DELAY.
sir your view?
Applicant’s I.Tax Rs.22039/- was deducted from the salory in the assing year 2010-11 by the ADFM, Railway, New Delhi. Applicant received a notice u/s 143(1) & given a written complaint to ADFM, Rly. that why my deducted tax has not been depoited in I.Tax Department & copy given to I.Tax Officer ward-42(2). Rly. says deposited but I.Tax Department showing Rs. 40580/- as outstanding still. Pl. help & guide me as now I have been retired.