PR. COMMISSIONER OF INCOME TAX-1 vs. M/S CONSORTIUM NUSSLI COMFORT NET

ITA 63/2022 Page 1 of 4 $~S-9 * IN THE HIGH COURT OF DELHI AT NEW DELHI + ITA 63/2022

PR. COMMISSIONER OF INCOME TAX-1 ..... Appellant Through: Mr.Sanjay Kumar, Advocate with Ms.Easha Kadian, Advocate.

versus

M/S CONSORTIUM NUSSLI COMFORT NET ..... Respondent Through: Dr.Rakesh Gupta, Advocate with Mr.Somil Agarwal and Mr.Anshul Mittal, Advocates.

Date of Decision: 25th March, 2022

CORAM: HON'BLE MR. JUSTICE MANMOHAN HON'BLE MR. JUSTICE DINESH KUMAR SHARMA J U D G M E N T MANMOHAN, J (Oral) 1. Present appeal has been filed challenging the order dated 23 :

rd 2. Learned counsel for the appellant states that the respondent-assessee had appeared and cooperated in the assessment proceedings and had not raised any objection about non-service of notice under Section 143(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) during the entire assessment proceedings and therefore, the assessee was precluded from March, 2021 passed by ITAT in ITA No. 456/Del/2015 for the Assessment Year 2011-12. This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/001069

ITA 63/2022 Page 2 of 4 taking any objection that the notice was not issued in time in accordance with Section 292BB of the Act. 3. Learned counsel for the appellant states that the Tribunal has erred in ignoring Section 124(3) of the Act which mandates that issue regarding jurisdiction of Assessing Officer cannot be challenged after one month from issuance of notice under Section 143(2) of the Act or after completion of assessment proceedings, whichever is earlier. 4. He also submits that Section 292BB has been interpreted by the Apex Court recently in Commissioner of Income-Tax vs. Laxman Das Khandelwal, [2019] 417 ITR 325 (SC) wherein it has been held as under:- “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 the 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 the part of the assessee. It is, however, 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 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.”

ITA 63/2022 Page 3 of 4

(a) not served (b) not upon him; or served (c) upon him in time; or served Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.”

upon him in an improper manner: 6. This Court is in agreement with the Tribunal that Section 292BB does not give the power to condone the failure or delay in issuing the statutory notice required to be issued under Section 143(2) of the Act. Section 292BB deals with failure of service of notice and not with regard to failure to issue notice. [See: CIT vs. Rajeev Sharma, [2011] 336 ITR 678 (All.HC), CIT vs. Ponorama Builders (P.) Ltd., [2014] 224 Taxman 203 (Gujarat)(MAG.) and CIT vs. Salarpur Cold Storage (P.) Ltd., [2014] 50 taxman.com 105 (Allahabad)]. 7. The Supreme Court in Commissioner of Income-Tax vs. Laxman Das Khandelwal (supra) has clearly stated that the scope of Section 292BB is to make service of notice having certain infirmities to be proper and valid. However, the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the Department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. In fact, a Division Bench of this Court in Pr.Commissioner of Income-tax Vs. Shri Jai Shiv Shankar Traders (P.) Ltd. [2015] 64 taxmann.com 220 (Delhi) has categorically held that the failure of the AO, in re-assessment proceedings, to issue notice under Section 143(2) of the Act, prior to finalising the re-assessment order, cannot be condoned by This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/001069

ITA 63/2022 Page 4 of 4 referring to Section 292BB of the Act. The relevant portion of the said judgment reads as under:

“.....Section 292BB would apply insofar as failure of “service” of notice was concerned and not with regard to failure to “issue” notice.....The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th 8. Therefore, on the basis of admitted fact that notice under Section 143(2) of the Act was not issued within the period of six months prescribed for the purpose, jurisdiction assumed by the Assessing Officer under Section 143(3) of the Act was assumed erroneously. December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act, is fatal to the order of re-assessment.”

MANMOHAN, J

DINESH KUMAR SHARMA, J MARCH 25, 2022/TS This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/001069