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Facts
The assessee's appeal against the assessment order for AY 2012-13 was filed with a delay of 190 days, which was condoned. The assessee challenged the validity of the assessment order passed u/s 144, primarily on the grounds of absence of a valid notice u/s 143(2) of the Act.
Held
The Tribunal held that a valid notice under Section 143(2) is essential for conferring jurisdiction on the Assessing Officer. In this case, the notice u/s 143(2) was not issued by the officer having jurisdiction and lacked proof of service, rendering the assessment order void ab initio due to a jurisdictional defect.
Key Issues
Validity of assessment order passed under section 144 due to absence of a valid notice under section 143(2).
Sections Cited
144, 143(2), 142(1), 68
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Income Tax Appellate Tribunal, “A” BENCH, KOLKATA
Before: SHRI RAJESH KUMAR, AM & SHRI PRADIP KUMAR CHOUBEY, JM
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 13.11.2024 for the AY 2012-13.
At the outset, we observe that there is a delay of 190 days in filing the appeal by the assessee and in support of this, a condonation petition was filed along with an affidavit. It was stated in the condonation petition that the delay had occurred due to medical issues faced by the person in charge of the assessee and accordingly, the delay has been sought to be condoned. The ld. DR, on the other hand, did not oppose
In Ground No. 1, the assessee has challenged the validity of the assessment order passed u/s 144 of the Act dated 19.03.2015 due to absence of valid notice u/s 143(2) of the Act.
3.1. The facts in brief are that, the assessee had filed its return of income for AY 2012-13 on 19.11.2013 declaring total income of Rs.3,48,590/-. The ld. AO has observed in the assessment order that notice u/s 143(2) was issued and duly served on the assessee on 05.09.2014 and thereafter, notice u/s 142(1) was issued on 13.03.2015, both of which remained non-complied. The ld. AO therefore held that the assessee was unable to discharge his onus in relation to the loan of Rs.3,65,00,000/- received during the year and had failed to submit the basic documents. The ld. AO accordingly completed the assessment u/s 144 on 19.03.2015 assessing the to the total income at Rs.3,68,48,590/- by way of unexplained cash credit u/s 68 of the Act.
3.2. In the appellate proceedings, the assessee had assailed the assessment order on merits and inter alia on its legality, viz. it was contended that the assessment order was bad in law as no valid notices u/s 143(2) or 142(1) had been issued upon the assessee. It is seen that, the ld. CIT(A) after considering the submissions of the assessee had set aside the assessment order passed by the ld. AO for making fresh assessment de-novo. Now the assessee is in appeal before us.
3.3.1. The ld. AR further invited our attention to the financials of the assessee and showed that the assessee had not received any unsecured loan during the year and therefore the addition of Rs.3,65,00,000/- made by the ld. AO on account of unexplained loan was totally unjustified. The ld. AR took us through Pages 33 to 54 of the Paper Book and showed that during the year the assessee had issued interest free Optionally Convertible Bonds of Rs.3,65,00,000/- to a SEBI registered Venture Capital Fund, M/s Opulent Venture Capital Trust,which had also been assessed to tax u/s 143(3) of the Act. He thus urged that the impugned addition was also unsustainable.
3.5. After hearing the rival submissions, it is observed that, the assessee has raised a legal issue challenging the validity of the impugned assessment order for lack of valid notice u/s 143(2) of the Act and since this challenge goes to the root of jurisdiction, we consider it fit to adjudicate the same first. It is well settled in law that the notice under Section 143(2) of the Act is the notice which confers jurisdiction on the ld. AO to proceed with the assessment and therefore where notice under Section 143(2) is not validly served in the course of assessment proceedings, then the assessment results in nullity. The relevant observations made by the Hon’ble Supreme Court in the case of ACIT Vs Hotel Blue Moon Hotels Limited (321 ITR 362)in this regard is as under:-
15. …….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 requires to be followed by the assessing officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This Section even speaks of subsections which are to be followed by the assessing officer. Had the intention of the legislature was to exclude the provisions of Chapter XIV of the Act, the legislature would have or could have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the assessing officer, if for any reason, repudiates the return filed by the assessee in response to notice under Section 158 BC(a), the assessing officer must necessarily issue notice under “.. A close look at section 292BB shows that if the assessee has participated in the proceedings, it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. [Para 7] .. According to section 292BB, 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 section 292BB is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee and section does not save complete absence of notice and, thus, for section 292BB to apply, the notice must have emanated from the department and it is only the infirmities in the manner of service of notice that the section seeks to cure and it is not intended to cure complete absence of notice itself. [Para 9] ..Since the facts on record are clear that no notice under section 143(2) was ever issued by the department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. There is no reason to take a different view in the matter.
3.5.2. The ratio decidendi emerging from the above decisions is that, where the notice u/s 143(2) is issued by an Officer lacking jurisdiction over the assessee’s case, but the order is ultimately passed by the Officer holding jurisdiction over the assessee’s case; it has been held that the issue of notice u/s 143(2) by an incorrect Assessing Officer is not mere procedural irregularity but is incurable infirmity. In 3.5.3. Having taken note of the above settled legal position, we now advert to the facts before us. We note that the AO has observed in the assessment order that, “notice u/s 143(2) was issued and duly served on assessee on 05.09.2014. On 13.03.2015, notice u/s 142(1) was issued with…..”. The assessee, upon taking inspection of the records, has placed before us the certified true copy of the order sheet along with the notice(s) found in the case records. We note that there is an order sheet entry dated 04.09.2014 signed by the then ITO, Ward 3.5.4. We also note that the office of ITO, Ward 7(4) was held by Ms. Runu Saha, as is evident from the signature found in the subsequent notice u/s 142(1) of the Act dated 30.10.2014 issued after a month by the same officer. It has however been brought to our notice that the notice u/s 143(2) bearing date 04.09.2014 was not issued by 3.5.5. The ld. DR was unable to controvert the submission of the ld. AR that Mr. Barun Kumar Roy never held the office of ITO, Ward 7(4), Kolkata and therefore he could not have exercised valid jurisdiction to sign and issue the notice u/s 143(2) of the Act. It is also observed from the above extracted notice that, it was claimed to have been sent by speed post on 05.09.2014. However there is no proof of service available on record. We also find force in the ld. AR’s plea that, the impugned notice could not have been possibly issued and served through speed post on the same date, as averred in the assessment order. We also note that, the ld. AO has also incorrectly asserted that notice u/s 142(1) of the Act was also issued on 13.03.2015 whereas the case records placed before us reveals that the said notice related to AY 2012-13 and not the impugned AY 2007-08. It is thus gathered that the impugned assessment order was passed without any valid issuance of notice u/s 143(2) or 142(1) of the Act.
3.5.6. In view of the above, we are therefore of the view that there was no valid issuance or service of notice u/s 143(2) of the Act upon the assessee, and thus the impugned assessment suffered from jurisdictional defect rendering the assessment order dated 19.03.2015 to be void ab initio. We accordingly quash the impugned order and allow the legal ground raised by the assessee.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on .2026.