The Delhi bench of the Income Tax Appellate Tribunal (ITAT) has recently held that complete absence of notice could not be cured by invoking Section 292BB of Income Tax Act 1961.
Section 292BB of Income Tax Act states that when a notice was issued under any provision of the act shall be deemed to have been served upon him in time according to the act.
V. K. Agarwal advocate appeared for the assessee and Shweta Bansal,. P. Praveen Sidharth, appeared for revenue.
The above appeal was filed by the revenue against the order of CIT(A).
Assessee-`ACE Group of Companies’ is presently engaged in various businesses of real estate and development in Noida and Greater Noida. ACE Mega Structure Pvt. Ltd is one of the group companies. During the course of search on the premises of the assessee< various incriminating documents were found and seized.
Consequently, a survey under Section 133A of the Income Tax Act was conducted at the business premises of the assessee company.
Thereafter the assessee filed his return on 25.09.2015 declaring total income of Rs.38,96 ,010/-. On 07.10.2016 the department issued a notice under section 143(2) of the Income Tax Act. Against the order, assesee filed appeal before CIT(A).
The CIT(A) set-aside the assessment order passed under section 143(2) of the Income Tax Act and found that “The return has been filed on 25 .09.2015 while notice under section 143(2) Income Tax Act was issued on 07.10.2016 which is after the due date for issue of notice by 30.09.2016.”
Against the order, revenue filed an appeal before the Income Tax Appellate Tribunal.
The division bench of tribunal comprised of Dr. B. R. R. Kumar (Accountant Member) and Yogesh Kumar US (Judicial Member) dismissed the appeal filed by the revenue and relied upon the decision of Supreme Court in the case of Commissioner of Income Tax vs. Laxman Das Khandelwal, while it was observed that “Section 292BB Income Tax Act to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.”
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