Shivaji S. Desai Vs ITO (ITAT Mumbai)
The service of notice issued under Section 143(2) of the Act directly by affixture, and that too, on an address on which the assessee had never resided or carried its business is not a valid service. In fact, there is no service of notice issued under section 143(2) of the Act on the assessee. Assessment under section 143(3) made without notice under section 143(2) of the Act suffers from jurisdictional defect. Consequently, the assessment proceedings arising therefrom are vitiated.
Here we would like to observe that no argument was raised by the Revenue to take recourse to the provisions of section 292BB of the Act and to say that once the assessee has participated in assessment proceedings, it shall not be open to assessee to challenge the proceedings on the ground that notice was not served or the notice was not served on time or improper service of notice.
Be that as it may, the provision of Section 292BB of the Act comes to the rescue of Revenue to regularise any defect in service of notice. However, where there is no notice, the provision of Section 292BB of the Act does not cure the defect. The Hon’ble Apex Court in the case of CIT vs. Laxman Das Khandelwal reported as 417 ITR 325(SC) in an unambiguous terms has held that absence of service of notice cannot be cured by invoking the provisions of section 292BB of the Act.
