January 2016
Assessment – Sections 143(2), 143(3) and 147 – A. Ys. 2006-07 to 2011-12 – Assessment u/s. 143(3) – Condition precedent – Issue of valid notice u/s. 143(2) – Difference between issue and service of notice – Deeming fiction – Section 292BB not applicable to non-issue of notice
By K. B. Bhujle Advocate
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ACIT vs. Greater Noida Industrial Development Authority; 379 ITR 14 (All): 281 CTR 204 (All):
The assessee challenged the validity of the assessment orders before the Tribunal on the following ground:
“That the order of learned Assessing Officer is void ab initio in so much as no mandatory notice u/s. 143(2) of the Income-tax Act, 1961, was issued at any stage of the assessment proceedings.”
The Tribunal allowed the appeals and quashed the assessment orders holding that the mandatory requirement of issuance of a notice u/s. 143(2) was not followed and, therefore, it was incurable and that the defect in the assumption of jurisdiction by the Assessing Officer could not be cured by taking recourse to the deeming fiction u/s. 292BB of the Act.
On appeal by the Revenue, the Allahabad High Court upheld the decision of the Tribunal and held as under:
“i) Since the Assessing Officer failed to issue notice within the specified period u/s. 143(2) of the Act, the Assessing Officer had no jurisdiction to assume jurisdiction u/s. 143(2) of the Act and this defect could not be cured by recourse to the deeming fiction provided u/s. 292BB of the Act.
ii) Consequently, the Tribunal was justified in setting aside the orders of the Assessing Officer.”
