MANAKSIA LIMITED,KOLKATA vs. DCIT, CIRCLE 4(1), , KOLKATA

PDF · subscribers
ITA 470/KOL/2025Status: DisposedITAT Kolkata22 July 2025AY 2010-1110 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the assessment framed by the Assessing Officer without issuing a notice under Section 143(2) of the Income Tax Act, 1961, is invalid and must be quashed. The Tribunal noted that the original assessment for AY 2010-11 was concluded under Section 143(3) on 20.03.2014. The case was reopened under Section 147, and a notice under Section 148 was issued on 31.03.2017. The assessee filed a return on 28.04.2017. However, the AO issued a notice under Section 142(1) on 29.05.2017 without issuing the mandatory notice under Section 143(2). The Tribunal found no mention of a Section 143(2) notice in the order sheet or the assessment order. Citing the Supreme Court's decision in ACIT vs. Hotel Bluemoon and other High Court judgments, the Tribunal concluded that the non-issuance of a notice under Section 143(2) is a vital mistake and a lapse that goes to the root of the assessment, rendering it bad in law and unsustainable. The Tribunal quashed the assessment and allowed the ground raised by the assessee.

What were the facts?

The assessee, Manaksia Limited, filed its return of income for Assessment Year 2010-11. The case was initially assessed under Section 143(3) of the Income Tax Act, 1961. Subsequently, the case was reopened under Section 147, and a notice under Section 148 was issued on 31.03.2017. The assessee filed a return in response to this notice. The Assessing Officer (AO) issued a notice under Section 142(1) and proceeded to frame an assessment order under Section 144 read with Section 147 on 22.06.2017, making an addition of ₹4,14,45,729/-. The AO provided the reasons for reopening the assessment after passing the order. The assessee appealed to the National Faceless Appeal Centre (NFAC), Delhi, which restored the appeal to the AO for fresh adjudication. The assessee is now appealing this order to the Income Tax Appellate Tribunal (ITAT).

What were the issues?

1. Whether the reassessment order passed by the Assessing Officer under Section 144 read with Section 147 of the Income Tax Act, 1961, is void ab initio for want of a valid notice under Section 143(2) of the Act, as argued by the assessee. Assessee's Contention: The assessee argues that the AO failed to issue a mandatory notice under Section 143(2) of the Act after the return was filed in response to the Section 148 notice. This omission, according to the assessee, is not a procedural irregularity but a jurisdictional defect that renders the entire reassessment proceedings invalid. The assessee relies on the Supreme Court decision in ACIT vs. Hotel Bluemoon and other High Court decisions to support its claim that the absence of a Section 143(2) notice is fatal to the assessment. Revenue's Contention: The Revenue relies on the orders of the authorities below.

Which sections of the Income-tax Act were involved?

Section 143(2),Section 147,Section 144,Section 148,Section 142(1),Section 115JB

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(5)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, “C” BENCH, KOLKATA

Before: SHRI DUVVURU RL REDDY, VP & SHRI RAJESH KUMAR, AM

For Appellant: Shri S.K. Tulsiyan &, Ms. Lata Goel, ARs
For Respondent: Shri Pradeep Dung Dung, DR
Hearing: 30.06.2025Pronounced: 22.07.2025

This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 17.01.2025 for the AY 2010-11.

2.

At the time of hearing, the ld. Counsel for the assessee pressed the ground no.3, which is extracted as under: - “3. That, the Ld. CIT(A) further erred in law in sending the reassessment order back to the A.O. without considering that the said reassessment order suffered from technical deficiencies for not having issued notice u/s 143(2) of the Act and hence the reassessment order set aside by the Ld. CIT(A) was void ab initio for want of valid jurisdiction, as decided in the case of ACIT vs. Hotel Bluemoon (2010) 321 ITR 362 (SC).”

4.

The assessee challenged the said assessment before the ld. CIT (A), however, the ld. CIT (A) without considering the submission of the assessee restored the appeal back to the file of the ld. AO for fresh adjudication on the ground that the ld. AO passed the ex-parte order without considering the merit.

6.

The ld. DR on the other hand relied on the order of the authorities below.

7.

After hearing the rival contentions and perusing the materials available on record, we find that the assessee filed the original return of income on 13.10.2010, declaring total income of ₹66,06,603/-. The case of the assessee was selected for scrutiny and the assessment was accordingly framed u/s 143(2) of the Act on 20.03.2014, accepting the return of income. The case of the assessee was subsequently reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 31.03.2017, which was complied with by filing the return of income on 28.04.2017, declaring total income of ₹66,06,606/-, copy of which is available at page no. 97 of the Paper Book. We note that the assessee addressed vide letter dated 23.01.2017 to Dy. Commissioner of Income Tax, Circle 4(2), P-7, Chowringhee Square, Kolkata, wherein the assessee specifically stated that the assessee has filed the return of income in response to notice u/s 148 of the Act and requested the ld. AO to make available or supply the reasons recorded u/s 148 (2) of the Act. However, the ld. AO has not supplied any reasons. We even note that the assessment was framed vide order dated 22.06.2017, u/s 144 read with section 147 of the Act and only thereafter supplied the reasons to the assessee on 04.04.2017. We have also perused the assessment order and confronted this issue to “15. We may now revert back to Section 158 BC(b) which is the material provision which requires our consideration. Section 158 BC(b) provides for enquiry and assessment. The said provision reads "that the assessing officer shall proceed to determine the undisclosed income of the Block period in the manner laid down in Section 158 BB and the provisions of Section 142, sub-section (2) and (3) of Section 143, Section 144 and Section 145 shall. so far as may be, apply." An analysis of this sub section indicates that, after the return is filed, this clause enables the assessing officer to complete the assessment by following the procedure like issue of notice under Sections 143(2)/142 and complete the assessment under Section 143(3). This Section does not provide for accepting the return as provided under Section 143(i)(a). The assessing officer has to complete the assessment under Section 143(3) only. In case of default in not filing the return or not complying with the notice under Sections 143(2)/142, the assessing officer is authorized to complete the assessment ex-parte under Section 144. Clause (b) of Section 158 BC by referring to Section 143(2) and (3) would appear to imply that the provisions of Section 143(1) are excluded. But Section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under Section 143(2). However, if an assessment is to be completed under Section 143(3) read with Section 158-BC, notice under Section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The other important feature that requires to be noticed is that the Section 158 BC(b) specifically refers to some of the provisions of the Act which "7. Section 148 of the Act permits the issuance of a notice in certain circumstances when it is discovered that income has escaped assessment and sub-section (1) thereof mandates a return to be filed upon an assessee being served a notice under such provision, whereupon "the provisions of this Act, shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139."

“12. The narration of facts as noted above by the Court makes it clear that no notice under Section 143(2) of the Act was issued to the Assessee after 16th December 2010, the date on which the Assessee informed the AO that the return originally filed should be treated as the return filed pursuant to the notice under Section 148 of the Act.

13.

In DIT v. Society for Worldwide Interbank Financial Telecommunications [2010] 323 ITR 249 (Delhi), this Court invalidated an reassessment proceedings after noting "the provisions contained in sub-Section (2) of Section 143 is mandatory and the legislature in their wisdom by using the word 'reason to believe' had cast a duty on the Assessing Officer to apply mind to the material on record and after being satisfied with regard to escaped liability, shall serve notice specifying particulars of such claim, In view of the above, after receipt of return in response to notice under Section 148, it shall be mandatory for the AO to serve a notice under sub-Section (2) of Section 143 assigning reason therein. In absence of any notice issued under sub Section (2) of Section 143 afterreceipt of fresh return submitted by the Assessee in response to notice under Section, the entire procedure adopted for escaped assessment, shall not be valid."

15.

In a subsequent judgment in CIT v. Salarpur Cold Storage (P.) Ltd. (2014) 50 taxmann.com 105/[2015] 228 Тахтan 48 (All.) (Mag.) it was held as under "10. Section 292 BB of the Act was inserted by the Finance Act, 2008 with effect from 1 April 2008, Section 292 BB of the Act provides a deeming fiction. The deeming fiction is to the effect that once the assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under the provisions of the Act, which is required to be served on the assessee, has been duly served upon him in time in accordance with the provisions of the Act. The axsexsee is precluded from taking any objection in any proceeding or enquiry that the notice was (1) not served upon him; or (ii) not served upon him in time; or (iii) served upon him in an improper manner. In other words, once the deeming fiction comes into operation, the assessee is precluded from raising a challenge about the service of a notice, service within time or service in an improper manner. The proviso to Section 292 BB of the Act, however, carves out an exception to the effect that the Section shall not apply where the assessee has raised an objection before the completion of the assessment or reassessment. Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition. For the Assessing Officer to make an order of assessment under Section 143 (3) of the Act. it is necessary to issue a notice under Section 143 (2) of the Act and in the absence of a notice under Section 143 (2) of the Act, the assumption of jurisdiction itself would be invalid."

16.

In the same decision in Salarpur Cold Storage (P.) Ltd. (supra), the Allahabad High Court noticed that the decision of the Supreme Court in Hotel Blue Moon (supra) where in relation to block assessment, the Supreme Court held that the requirement to issue notice under Section 143(2) was mandatory. It was not "a procedural irregularity and

11.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 22.07.2025.

More judgments on Section 147

All 49,210 judgments and leading authorities on Section 147 →

Recent GST High Court judgments

Search GST case law →