PR. COMMISSIONER OF INCOME TAX-I vs. BABU LAL ALIAS BALU RAM

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Income Tax Appeal No. 3/2020 Pr. Commissioner Of Income Tax-I, Jodhpur. ----Appellant Versus Babu Lal Alias Balu Ram, Gram Kudi Bhagtasani, Near Water Tank, Sangariya, Jodhpur. ----Respondent For Appellant(s) : Mr. K.K. Bissa through CISCO Webex HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE DINESH MEHTA Order 04/01/2021 1. The present appeal under Section 260A of the Income Tax Act, 1961 is directed against the order dated 25.11.2019 passed by Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur. 2. Brief facts giving rise to the present appeal are that the Assessing Officer passed an order dated 31.03.2016 under Section 143(3)/147 of the Income Tax Act. 3. The assessee preferred an appeal before the Commissioner (Appeals)-1, Jodhpur against the aforesaid order dated 31.3.2016 and raised an objection that the assessment order sans grant of opportunity of hearing or issuance of notice was nonest. The assessee’s such contention was not accepted by the appellate authority and his appeal was dismissed vide order dated 15.02.2018 by the Commissioner (Appeals). 4. Being aggrieved with the order dated 15.02.2018 passed by the appellate authority, the assessee preferred an appeal before

(2 of 3) [ITA-3/2020] the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur, which has been allowed by the Tribunal. The Tribunal held that the assessment order was liable to be set aside, as no notice under Section 143(2) of the Act was served upon the assessee, while relying upon the judgment of Hon’ble the Apex Court rendered in case of CIT Vs. Laxmandas Khandelwal; (2019) 417 ITR 325 (SC). 5. Mr. Bissa, learned counsel appearing for the appellant submits that since the assessee had participated in the assessment proceedings, service of notice was an empty formality. While contending that no prejudice has been caused to the assessee, he argued that impugned order of the Tribunal deserves to be set aside. 6. We have heard learned counsel for the appellant; perused the record of the case and judgment of Hon’ble the Apex Court rendered in case of Laxmandas (supra). 7. Indisputably before passing of the order, no notice under Section 143(2) of the Act was issued to the respondent – assessee. 8. The facts of the present case are exactly identical to the facts involved in the case of Laxmandas (supra). It will not be out of place to reproduce para No.9 and 10 of the judgment aforesaid, which reads thus :- “9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, therefore, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the

(3 of 3) [ITA-3/2020] 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. 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter.” 9. In our considered opinion, non-issuance of notice under Section 143(2) of the Act is fatal to the assessment proceedings. 10. We do not find any error of law in the impugned order dated 25.11.2019 passed by the appellate Tribunal. The appeal, therefore, fails. (DINESH MEHTA),J (INDRAJIT MAHANTY),CJ 17-ArunV/-