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Facts
The assessee company filed a return declaring a loss. Based on information about accommodation entries of ₹90,00,000, the AO reopened the assessment under Section 147 and added this amount. The assessee filed a return in response to the Section 148 notice, but no subsequent notice under Section 143(2) was issued, leading to the assessment being framed without it. The CIT(A) had set aside the appeal.
Held
The Tribunal held that the issuance of a notice under Section 143(2) is mandatory, even in reassessment proceedings under Section 147. Since no such notice was issued after the assessee filed its return in response to the Section 148 notice, the reassessment framed under Section 147 r.w.s. 143(3) is invalid and void ab initio, as this defect cannot be cured by Section 292BB.
Key Issues
The primary issue was the validity of a reassessment framed under Section 147 without the mandatory notice under Section 143(2) being issued after the assessee filed its return in response to Section 148, and whether such a defect could be cured by Section 292BB.
Sections Cited
250, 147, 148, 142(1), 143(2), 292BB, 143(3)
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Income Tax Appellate Tribunal, “D” BENCH KOLKATA
आदेश / O R D E R
PER SONJOY SARMA, JM :
This appeal by the assessee arises against the order dated 25.02.2025 of the National Faceless Appeal Centre (hereinafter referred to as the ‘CIT(A)’) passed under section 250 of the Income- tax Act, 1961 (the ‘Act’).
Brief facts of the case are that the assessee-company filed its original return of income for A.Y. 2013–14 on 28.03.2014, declaring a total loss of ₹2,00,002. Subsequently, information was received from the office of the Income Tax Investigation Wing that during the relevant period, the assessee was a beneficiary of accommodation entries amounting to ₹90,00,000. Based on the said information, the Assessing Officer reopened the assessment under section 147 and issued notice under section 148 of the Vinayak Tradevin Pvt. Ltd. Income-tax Act. In response, the assessee filed its return of income on 27.03.2021, declaring the same loss as originally declared. Thereafter, notice under section 142(1) along with a questionnaire was issued online. However, the assessee did not comply with the statutory notices. The Assessing Officer treated the amount of ₹90,00,000 as unexplained money, holding the assessee to be a beneficiary of accommodation entries, and added the same to the assessee’s income while completing assessment under section 147.
The assessee preferred an appeal before the CIT(A), wherein the appeal of the assessee was set aside to the file of the AO.
Aggrieved by the order of the ld. CIT (A) assessee is in appeal before this tribunal. The assessee contended before the bench that no notice under section 143(2) was issued against the return filed on 27.03.2021 in response to notice under section 148 of the Act. The assessment framed under section 147 without service of notice under section 143(2) is invalid in law. In this regard the Ld. AR relied on the judgment of the Hon’ble Calcutta High Court in the case of CIT v. Oberoi Hotels Pvt. Ltd.(2018) 96 Taxman.com 104(cal) wherein it was held that an assessment completed without issuing a notice under section 143(2) is legally unsustainable, and such a defect cannot be cured by section 292BB of the Act. It was further argued that the reopening itself was invalid as it was made on the basis of borrowed satisfaction, without independent application of mind by the Assessing Officer.
On the other hand, ld. DR supported the orders of the lower authorities.
We have heard the rival submissions and perused the materials available on record. It is an admitted fact that no notice under section 143(2) of the Act was issued to the assessee after it filed the return in response to notice under section 148 of the Act. Issuance of a notice under section 143(2) Act is mandatory, even in a reassessment proceeding under section 147 of the Act. The Hon’ble Jurisdictional Calcutta High Court in CIT v. Oberoi Hotels Pvt. Ltd. 2018) 96 Taxman.com 104(Cal) has categorically held that an assessment framed without issuing notice under section 143(2) of the Act is invalid and void ab initio, and such defect is not curable through section 292BB of the Act. The Revenue has not produced any evidence on record to show that notice under section 143(2) was issued. In absence of such mandatory notice, the reassessment proceedings are vitiated. Once the very assumption of jurisdiction is bad in law, the subsequent assessment order cannot survive. Accordingly, we hold that the reassessment framed under section 147 r.w.s. 143(3) without issuance of notice under section 143(2) is invalid. The assessment order is therefore quashed. Accordingly, the appeal of the assessee is allowed.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 08/12/2025.