SITANSHU GUPTA,DEHRADUN vs. INCOME TAX OFFICER , DEHRADUN

Before us, the Ld. AR placed on record the Form 35 filed before the Ld. CIT(A) in which the ground no. 1.4 was specifically on the issue of notice u/s 143(2) of the Act not being issued by the Ld. AO. The Ld. AR read out from the impugned order at pages 6 & 7 whereby the absence of any notice u/s 143(2) of the Act has been dealt with by the Ld. CIT(A) and decided against the assesse following the provisions of section 292BB of the Act. It is recorded in the impugned order that the assessee never raised any objection before the Ld. AO and hence he would be debarred from raising any objection at appellate stage on that issue.

We have carefully considered the rival submissions and have gone through the records before us. For the sake of capturing the facts it needs to be mentioned that a notice u/s 148 of the Act was issued on 27.03.2019 and the assessee field a return of income on 14.05.2019. Thus, there was a legal requirement to issue a notice u/s 143(2) of the Act as has been held in the case of Hotel Blue Moon reported in 188 Taxman 113 (SC) and the case of Laxman Das Khandelwal reported in 108 taxmann.com 183 (SC). The argument of the Ld. DR that the provisions of section 292BB of the Act would protect the Ld. AO, cannot cure this fatal defect since 292BB would protect the AO only in case of any defect in the service of notice u/s 143(2) of the Act. There would be no protection in case a notice was never issued by the Ld. AO. Accordingly, we allow ground no.4 of the assessee and quash the resultant assessment order.

In the result, this appeal is allowed.