The Income Tax Appellate Tribunal (ITAT) Delhi Bench while quashing the reassessment order passed by the Assessing officer held that failure to issue notice for reassessment should not be curable under Section 292BB of Income Tax Act, 1961 .
Sohanbir Singh, the taxpayer filed the appeal against the reassessment order passed by the Assessing Officer(AO) without issuing proper notice under Section 143(2) of the Income Tax Act.
When the assessee filed an appeal against the order before the National Faceless Appellate Center (NFAC), who upheld the reassessment order of AO. Thereafter, the assesee filed a second appeal before the tribunal.
During the proceedings before the bench, Somil Agarwal,counsel for assessee submitted Assessing Officer, has not issued any notice under Section 143(2) of the Income Tax Act.
Further when no notice under Section 143(2) Income Tax Act has been issued by the Assessing Officer then the failure by the Assessing Officer is fatal to the order of reassessment and this defect is not curable under Section 292BB of the Income Tax Act.
Sumesh Swani,Counsel for Revenue supported the orders of the lower authorities.
It was observed by the tribunal that in the reassessment order dated 30.03.2022 nor in the said factual report regarding issuance of notice under Section 143(3) of the Act was not mentioned .
Therefore, it is presumed that the Assessing Officer has not issued any notice under Section 143 (2) of the Income Tax Act before framing a reassessment order dated 30.03.2022 under Section 147 read with Section 144 of the Income Tax Act.
Further relied upon the decision of Delhi high court in the case of PCIT vs. Jay Shiv Shankar observed the “failure of the Assessing Officer to notice under Section 143(2) Income Tax Act in reassessment proceedings, prior to finalizing reassessment order, cannot be condoned by referring to s 292BB of the Income Tax Act is fatal to the order of reassessment.”
After reviewing the facts and submission the single member bench of the tribunal Chandra Mohan Garg (Judicial Member) held that without valid jurisdiction AO passed the reassessment order.
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