Assessment Order can't be framed without issuing a Notice u/s 143(2) of Income Tax Act: Delhi HC [Read Order]

The Delhi High Court held that the assessment order cannot be framed without issuing a notice under Section 143(2) of the Income Tax Act, 1961.

The appellant/revenue, concededly, had not issued a notice under Section 143(2) of the Income Tax Act to the respondent/assessee. The appellant/revenue has taken the stand, both before the Tribunal as well as before this Court, that since the Return of Income (ROI) was filed beyond the thirty (30) days provided in the notice dated 30.03.2015, issued under Section 148 of the Income Tax Act, it was not obliged to issue a notice under Section 143(2) of the Income Tax Act before passing the assessment order.

It was submitted that although the ROI was available on record, which was considered while framing the assessment order, no notice, under Section 143(2) of the Income Tax Act, was issued to the respondent/assessee before framing the assessment order. A perusal of the order sheets framed by the Assessing Officer would also establish this fact.

Thus, the impugned assessment order, which has been framed without a notice being issued to the respondent/assessee under Section 143(2) of the Income Tax Act, is unsustainable in law. Such an infraction, being a jurisdictional defect, would render the impugned assessment order untenable in the eyes of the law.

The Division bench comprising of Justice Rajiv Shakdher and Justice Girish Kathpalia held that before framing an assessment order, the Assessing Officer ought to have issued a notice under Section 143(2) of the Income Tax Act. The submission advanced on behalf of the appellant/revenue that, while it could consider the invalid return while framing the assessment order, it was not obliged to issue a notice under Section 143(2) of the Income Tax Act because it was not filed within the timeframe given in Section 148 of the Income Tax Act notice was untenable in law, since the ROI, which was belated, was considered by the Assessing Officer while carrying out the assessment.

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