MOHAN YADAV,INDORE vs. ITO3(1), INDORE
What did the Tribunal hold?
The Tribunal admitted the additional ground, holding that the assessment order was passed without valid jurisdiction as no notice under Section 143(2) was issued within the prescribed time. Consequently, the assessment order and all consequent proceedings were quashed.
What were the facts?
The assessee sought to raise an additional ground regarding the invalidity of the assessment order due to the non-issuance of a notice under Section 143(2) within the prescribed time. Copies of notices obtained under RTI were dated much after the assessment order was passed.
What were the issues?
Whether an assessment order is null and void if a notice under Section 143(2) is not issued within the prescribed time, and if such a defect is curable under Section 292BB.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(1)Show listHide 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.
- ACIT v. Hotel Blue Moon623 citing321 ITR 362 · 2010 · SC · Read judgment
Income Tax Appellate Tribunal, INDORE BENCH: DB: INDORE
Before: SHRI CHANDRA MOHAN GARG & SHRI BHAGIRATH MAL BIYANI
This appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-II, Indore dated 01.11.2018 for AY 2009-10.
Request of assessee for admission of additional ground no. 3
The learned counsel submitted that the assessee a challenging the validity of assessment order on the legal ground of non-issuance of notice u/s. 143 (2) of the Income Tax Act, 1961 by the AO as per judgement of Hon’ble Supreme Court in the case of Collector Land Acquisition, ... vs Mst. Katiji & Ors reported in 1987 AIR 1353 the legal issue can be raised first time before the Tribunal which goes to the root of the matter and can be adjudicated on the basis of material already available on record without any other documentary evidence or exercised. The ld. CIT(DR) opposed to the admission of additional ground. The additional ground sought to be raised by the assessee reads as follows:-
The assessment is null and void as no notice was issued u/s. 143(2) within time.
On careful consideration of above we are of view that the assessee seeks to raise legal contention based on factual position of the case. Undisputedly, this issues was not raised before the ld. CIT(A) but as per preposition rendered by Hon’ble Supreme Court (supra) and other various judgments of Hon’ble High Court the legal issue which goes to the root of the matter and can be decided on the basis material available on record can be raised first time before the Tribunal and the same deserve to be admitted and adjudicated. Hence additional ground of assessee, as noted above, is admitted for adjudication.
The learned counsel submitted that despite several request to the AO, the assessee could not get copies of the notices issued by the AO u/s. 143(2) and 142(1) of the Act. Therefore the assessee filed an application under Right to Information Act, on 20.11.2020 which was replied by the ITO on 14.12.2020 providing copies of the notice u/s. 143(2) and 142(1) of the Act dated 11.07.2016 for AY 2009-10 which are beyond prescribed time limit. The learned counsel also drew our attention towards order sheet of the AO for AY 2009-10 wherein the date of issuance said notices has been mentioned as 11.07.2016. The learned counsel placing reliance on the judgment of Hon’ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal dated 13.08.2019 in SLP (C) 7708 of 2019 submitted that when no notice u/s. 143(2) of the Act has been issued and served on the assessee within prescribed time limit then the assessment order is vitiated and this defect is not curable u/s. 292BB of the Act.
Replying to the above the ld. CIT(DR) strongly supported the action of the AO and submitted that if there is any minor defect in the notice then it is curable u/s. 292BB of the Act, hence additional legal ground of assessee may kindly be dismissed. On being asked by the bench the ld. CIT(DR) shown his inability to submit relevant assessment record and submitted that despite several efforts the departmental is unable to trace and place relevant assessment records. However, he did not controvert the copies of notice u/s. 143(2) and 142(1) dated 11.07.2016 and order sheet of Assessing Officer for AY 2009-10 starting from 11.07.2016.
First of all, we note that impugned assessment order was passed on 29.12.2011 and in the first paragraph of order the Assessing Officer mentions that notice u/s. 143(2) of the Act dated 15.09.2010 was duly served upon the assessee on 16.09.2010 but in reply to application of assessee under RTI Act, dated 20.11.2020 the Assessing Officer vide letter dated 14.12.2020 provided copies of the notices u/s. 143(2) and 142(1) both dated 11.07.2016 along with copy of order sheet from date 11.07.2016. Which reveals that the Assessing Officer in fact issued said notices on 11.07.2016 much after passing assessment order on 29.12.2011. therefore we safely presume that the Assessing Officer has not issued any notice u/s. 143(2) of the Act on 15.09.2010 as noted in the first paragraph of assessment order.
In the case of ITO vs. Laxman Das Khandelwal (supra) Hon’ble Supreme Court by referring to its own judgment in the case of ACIT vs. Hotel Blue Moon 321 ITR 362 (SC), held that the service of the notice of the assessee u/s. 143(2) of the Act, within prescribed period of time is a prerequisite for framing valid assessment orders. However their Lordships made distinction between the cases where the assessee participated in the proceedings and notice was not served upon him, or not served upon him on time or served upon him in improper manner then the provision of secioton 292BB of the Act would come into play in favour of the revenue. Their Lordship further explained that but in a case where there is no notice u/s. 143(2) of the Act was ever issued by the department then the result would be different and it has to be held that the impugned assessment order is null & void being passed without assuming valid jurisdiction by the Assessing Officer.
Since in the present case the ld. CIT(DR) neither produced assessment records nor produce copy of notice u/s. 143(2) of the Act, dated 15.09.2010 as noted by the Assessing Officer in the assessment order therefore respectfully following the judgment of Hon’ble Supreme Court in the case of Laxman Das Khandelwal (supra) we hold that the impugned assessment order dated 29.12.2011 passed u/s. 154/143(3) of the Act is not valid and sustainable being passed by the AO without assuming valid jurisdiction by issuing notice u/s. 143(2) of the Act within prescribe time limit. Thus, impugned assessment order and all consequent proceedings and orders are quashed. Accordingly additional ground of assessee is allowed.
Since in the earlier part of this order we have quashed assessment order and all other consequent orders therefore grounds of assessee on merits are not being adjudicated and left open.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in Open court on 18.05.2023.
Similar judgments
Other orders that rely on the same authority or decide the same section.
- DCIT Circle-3(1)91), Bengaluru vs G Corp Private Limited, BangaloreBangalore1 Apr 2026Allowed
Also relies on ACIT v. Hotel Blue Moon
The Tribunal held that a fresh notice under section 143(2) is not mandatory when an assessment is modified or re-done pursuant to a section 263 order, as these proceedings are a continuation of the original assessment. T...
- Goal Oriented Trade Link Pvt. Ltd., Kolkata vs ITO, Ward 2(1), KolkataKolkata17 Feb 2026Allowed
Also relies on ACIT v. Hotel Blue Moon
The Tribunal held that the AO's failure to issue a mandatory notice under Section 143(2) after the assessee filed a valid return (considering the extended period) renders the assessment order invalid and a nullity. The a...
- Shri Rai Singh Sihag, Jaipur vs Income Tax Officer, Ward-3-1, JaipurJaipur15 Nov 2021Allowed
Also relies on ACIT v. Hotel Blue Moon
The Tribunal held that the reassessment proceedings were initiated without issuing a mandatory notice under Section 143(2) of the Income Tax Act. This absence of notice is a fatal defect that invalidates the entire reass...
- Cosmat Traders (P) Ltd, Kolkata vs ITO, Ward-6(2), KolkataKolkata21 Apr 2021Allowed
Also relies on ACIT v. Hotel Blue Moon
The Tribunal held that passing an assessment order under Section 144 without issuing a notice under Section 143(2) by the Assessing Officer having jurisdiction is bad in law. The assessment order was quashed on these gro...
- Ramakant Sharma, Jaipur vs ITO, JaipurJaipur2 Dec 2019Allowed
Also relies on ACIT v. Hotel Blue Moon
The Tribunal held that the issuance and service of a notice under Section 143(2) is a mandatory requirement in reassessment proceedings. Since no such notice was issued or served, the subsequent assessment proceedings ar...
More judgments on Section 292BB
- Sbi, (Erstwhile Sbbj), Baran vs ITO (TDS), KotaITA 143/JPR/2026[2017-18]Status: Disposed13 Oct 2026AY 2017-18
- ITO 23 3 6 Mumbai, Mumbai vs Ramesh C Salecha HUF, MumbaiITA 1370/MUM/2026[2009-10]Status: Disposed23 Sept 2026AY 2009-10
- Ramesh C Salecha HUF, Mumbai vs Income Tax Officer Ward 14(2)(3), MumbaiITA 1253/MUM/2026[2009-10]Status: Disposed23 Sept 2026AY 2009-10
- Poonam Devi, Delhi vs Income Tax Officer Ward 50(1), DelhiITA 2472/DEL/2026[2020-21]Status: Disposed23 Sept 2026AY 2020-21
- Ravi Dilip Waghela, Mumbai vs Income Tax Officer Ward, 23(3)(1), MumbaiITA 1799/MUM/2025[2012-13]Status: Disposed21 Sept 2026AY 2012-13
Latest GST High Court judgments
Search GST case law →- M/S Kotdwar Steel Limited vs. Office Of Hte Deputy CommissionerUttarakhand · 28 Oct 2026
- M/S Kotdwar Steel Limited vs. Office Of The Deputy CommissionerUttarakhand · 28 Oct 2026
- M/S Kotdwar Steel Limited vs. Office Of The Deputy CommissionerUttarakhand · 28 Oct 2026
- M/S. Sikka Motors PVT LTD vs. Union Of INDIA & Anr.Delhi · 27 Oct 2026
- Shri Yaras Suresh Babu Prabhu Kumar vs. The Union Of INDIATelangana · 27 Oct 2026