Case Law Details
Dr. Shri Gurunath Shankarappa Wachche Vs ITO (ITAT Pune)
Section 292BB provides that where an assessee has appeared in any proceedings etc., it shall be deemed that any notice under any provision of this Act, has been duly served upon him in time and such assessee shall be precluded from taking any objection in any proceeding that the notice was not served upon him; or was not served upon him in time; or was served upon him in an improper manner. It is clear from the language of the section that the same deals with only improper service of notice, meaning thereby, that participation in proceedings validates the improper service of notice also. However, the facts of the instant case are on a little different footing. The case of the assessee is that no notice u/s 148 was issued, which is a condition precedent for exercising jurisdiction u/s 147. It is evident that recourse to reassessment under section 147 can be taken only after notice u/s 148. In the absence of any notice u/s 148, there can be no re-assessment. Here is a case in which there is no evidence of the AO issuing notice u/s 148 of the Act, which fact has also transpired from the remand report furnished by the AO. Once it is proved that notice u/s 148 was not issued, there cannot be any question of making any reassessment. Reliance of the ld. CIT(A) on the provisions of section 292BB is misplaced because the said section only stipulates that participation in the assessment proceedings / reassessment proceedings would be deemed as a proper service of notice. This section does not deal with the issuance of the requisite notice. The Hon’ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal (2019) 417 ITR 325 (SC) has held that section 292BB deals with failure of service of notice and not failure to issue notice. Since, admittedly, no notice was issued u/s 148 in this case, I am satisfied that the entire edifice of reassessment created by the AO is without any bedrock. Ex consequenti, the re-assessment order is vitiated and the resultant impugned order gets set aside.
FULL TEXT OF THE ORDER OF ITAT PUNE
This appeal by the assessee is directed against the order dated 19-08-2019 passed by the CIT(A)-9, Pune, in relation to the assessment year 2011-12.
2. The first issue raised in this appeal is against non-issuance of notice u/s 148 of the Income-tax Act, 1961 (hereinafter referred to as „the Act‟).
Please become a Premium member. If you are already a Premium member, login here to access the full content.
Glad to state that I was associated as a Legal Representative in this case during First Appeal proceedings