The Indore bench of Income Tax Appellate Tribunal (ITAT) has recently while quashing the assessment order passed under Section 143(3) of Income Tax Act 1961 observed that there is no notice issued and served under Section 143(2) within the prescribed time limit.
Assesse Mohan Yadav filed the appeal against the order of Commissioner of Income Tax (Appeals) . Assessee challenged the validity of assessment order on the legal ground of non-issuance of notice under Section 143 (2) of the Income Tax Act, 1961.
Counsel for the assessee submitted that assessee could not get copies of the notices issued by the AO under section 143(2) and 142(1) of theIncome Tax Act. Due to this, the assessee filed an application under the Right to Information Act providing copies of the notice under Section 143(2) and 142(1) of theIncome Tax Act, dated 11.07.2016 for AY 2009-10 which are beyond the prescribed time limit.
Relied upon the judgment ofSupreme Court in the case of CIT vs. Laxman Das Khandelwal assesee argued that there was no notice under Section 143(2) of the Income Tax Act has been issued and served on the assessee within prescribed time limit then the assessment order is vitiated and this defect is not curable under Section 292BB of the Income Tax Act.
P.K. Mishra counsel for the revenue submitted that if there is any minor defect in the notice then it is curable under Section 292BB of the Income Tax Act.
The tribunal, while considering the appeal noted that in the assessment order the Assessing Officer mentions that notice under Section 143(2) of the Act dated 15.09.2010 was duly served upon the assessee on 16.09.2010 but in reply to application of assessee under Right To Information Act, dated 20.11.2020 the Assessing Officer vide letter dated 14.12.2020 provided copies of the notices u/s. 143(2) and 142(1) both dated 11.07.2016 along with a copy of the order sheet from date 11.07.2016.
Therefore, the bench observed that the Assessing Officer had not issued any notice under Section 143(2) of the Act. Thus where there was no notice under Section 143(2) of the Act issued by the department, assessment order is null & void being passed without assuming valid jurisdiction by the Assessing Officer.
The two member bench of Chandra Mohan Garg, (Judicial Member) and Bhagirath Mal Biyani, (Accountant Member) observed that the revenue neither produced assessment records nor produced copy of notice under Section 143(2) of the Income Tax Act before the bench.
Thus, the assessment order dated 29.12.2011 passed under Sections 154 and 143(3) of the Income Tax Act was held to be not valid or sustainable being passed by the AO without assuming valid jurisdiction by issuing notice under Section 143(2) of the Income Tax Act within prescribed time limit.
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