ACIT CENTRAL CIRCLE-19, NEW DELHI vs. MAX BUILDTECH PVT LTD, NEW DELHI

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ITA 1876/DEL/2019Status: DisposedITAT Delhi03 March 2023AY 2008-093 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that the non-service of a valid notice under Section 143(2) after the filing of a return in response to a notice under Section 148/153A is a fundamental jurisdictional defect. This defect is not curable under Section 292BB of the Income Tax Act.

What were the facts?

The Assessing Officer (AO) issued a notice under Section 148 and later under Section 143(2). The assessment order was passed, but the service of the Section 143(2) notice was unclear, and the date was initially misstated in the assessment order. The CIT(A) quashed the assessment order due to the non-service of a valid notice under Section 143(2).

What were the issues?

Whether the non-service of a valid notice under Section 143(2) is a curable defect under Section 292BB, and if not, whether the assessment order passed without valid jurisdiction is liable to be quashed.

Which sections of the Income-tax Act were involved?

Section 147,Section 153A,Section 143(3),Section 148,Section 143(2),Section 292BB

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHIBENCH ‘E’, NEW DELHI

Before: Dr. B. R. R. KumarSh. Yogesh Kumar US

For Respondent: Ms. Sarita Kumari, CIT-DR
Hearing: 08.12.2022Pronounced: 03.03.2023

Per Dr. B. R. R. Kumar, Accountant Member:

1.

The present appeal has been filed by the revenue against the order of the ld CIT(A)-27, New Delhi dated 17.12.208.

2.

The revenue has raised the following grounds of appeal: “1) Whether the Ld. CIT(A) has erred in law and on facts of the case in quashing the assessment order u/s 147/153A r.w.s. 143(3) of the Act. 2) Whether the Ld. CIT(A) has erred in law and on facts of the case in holding that the alleged non service of notice u/s 143(2) is not curable under Section 292BB of the Act. 3) (a) The order of the CIT(Appeals) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal.”

Max Buildtech Pvt. Ltd 3. In the case, the notice u/s 148 has been issued on 10.03.2015 and notice u/s 143(2) was issued on 28.04.2016. These facts emanate from the Assessment Order itself at page no.

1.

During the proceedings before the ld. CIT(A), the Assessing Officer has also submitted the copy of the notice u/s 143(2) dated 28.04.2015 and submitted that the date was wrongly mentioned as 28.04.2016 instead of 28.04.2015 in the Assessment Order. With regard to the service of notice, the AO submitted that the details regarding the service of notice is “unclear”. Based on the report of the AO, the ld. CIT(A), Sh. Kanwaljit Singh adjudicated as under:

“4.6 After considering the facts of the case and legal position of the jurisdictional High Court on the issue under consideration, I am of the opinion that,

(a) Facts of the non service of notice u/s 143(2) are existing in this case. (b) The appellant has filed return of income in response to notice u/s 148 of the I.T. Act. (c) The judicial precedent of jurisdictional High Court, which is binding, is in favour of the appellant. There are other host of judgements in favour of appellant also. These judgements have held that service of valid 143(2) notice, within prescribed limits of law, after filing of return of income by the appellant in response to 148/153A notice is mandatory. This is a serious jurisdiction error which cannot be cured by the provisions of section 292BB.

Max Buildtech Pvt. Ltd In the present facts of the case and direct decision of the jurisdictional High Court on these facts, it is held that non service of 143(2) notice after filing of return of income by the appellant is a basic defect in assuming jurisdiction which is not curable by section 292BB of the Act. Therefore the assessment made u/s 147/153A r.w.s. 143(3) is without assuming valid jurisdiction and is liable to be quashed. Accordingly, the assessment order dated 30.03.2016 for A.Y. 20089-09 u/s 147/153A r.w.s. 143(3) is hereby quashed.”

4.

In the absence of any contrary findings or objections brought before us, we decline to interfere with the order of the ld. CIT(A).

5.

In the result, the appeal of the Revenue is dismissed. Order Pronounced in the Open Court on 03/03/2023.

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