Absence of Notice can’t be Cured by Invoking Sec 292 BB: ITAT [Read Order]

Notice - Re-assessment

The Delhi bench of Income Tax Appellate Tribunal ( ITAT ) in Hatch Associates India (P) Ltd vs. ACIT has held that absence of notice cannot be held to be a curable defect under Section 292 BB of the Income Tax Act.

In instant case Assessee called Hatch Associates India (P) Ltd is a company engaged in the business of project advisory service, filed its return of income within the time stipulated for return filing declaring loss and book loss for the AY 2007-08. The same was revised on 30/3/2009 with no change in the book loss and however, the loss as per the normal computation of income was revised at Rs. 1 636 5195/.

Consequently, the assessment u/s 143 (3) resulted in various addition and disallowances of various expenditures.

The allegation raised here was assessee has not been served to notice u/s 143 (2) of the income tax act within the prescribed time up to 30/9/2009(i.e. Six months after the date of revised return).

Being aggrieved with the decision of AO, Assessee appealed before CIT (A) who dismissed the appeal. Therefore assessee is in appeal before this tribunal with the aforesaid additional ground.

Advocate Piyush Kaushik and SR Senapati appeared at the behest of Assessee and revenue respectively. The Counsel for Revenue raised the objection on the additional ground raised by the Assessee and submitted that assessee has appeared before the AO and has not objected to the assessment proceedings. Therefore the assessee does not have any right to now agitate that no notice u/s143 (2) has been served on the assessee in time.

Further revenue submitted that AO mentioned in assessment order that said notice issued and served on the assessee and also demanded for a fresh investigation on the fact of the case.

The counsel for Assessee relied on the decision of ACIT versus Hotel Blue Moon wherein it has been held that it is mandatory on the part of the AO to issue and serve notice u/s 143 (2) within the stipulated time.

Assessee also stated well settled position of law regarding the absence of notice under section 143 (2) within the stipulated timeframe being the jurisdictional notice is not curable defect u/s 292 BB of the Act, also added that since notice issued was not within the time frame then the assessment order passed by AO cannot be sustained.

The tribunal bench including K. N. Charry, judicial member and Prashant Maharishi, accountant member considered the rival contentions. Tribunal pressed the reliance placed decision of Assessee in Hotel Blue Moon Case and also relied on the decision of Punjab and Haryana High Court in the case of CIT versus Cebon India Ltd wherein it has been held that that absence of notice cannot be held to be a curable defect u/s 292 BB of the income tax act.

Considering the above judgment bench set aside the additional ground raised by the assessee to the file of the CIT (A) to decide whether notice u/s 143 (2) has been issued to the assessee within the time prescribed as per the Income Tax act or not.

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