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Provisions of section 292BB do not cure the virus of non-issuance of notice under section 143(2)

Section 143, read with section 292BB, of the Income-tax Act, 1961 – Assessment – Issue of notice -Service of notice [2015] ITAT GUWAHATI – Rajib Saikia v. Assistant Commissioner of Income-tax, Circle-2, Guwahati

FACTS

An action under section 143(2) was carried out in the case of the assessee. Thereupon, the Assessing Officer completed the assessment under section 153A.

In appellate proceedings, the assessee raised an additional ground that no notice under section 143(2) was issued to him.

The Commissioner (Appeals) found that the acknowledgment slip of notice bore the signature of the Authorised Representative (AR) of the assessee but, he denied having any authority to receive notice on behalf of the assessee. He also found that the notice did not bear the address or PAN of the addressee. Therefore, he held that the service of the notice was highly doubtful.

However, the Commissioner (Appeals) finding that the assessee had participated in assessment proceedings, opined that the assessment made by the Assessing Officer was valid in terms of section. 292BB even if there was non-service of notice as per the provisions of the Act.

On the second appeal, it was Held

Service of notice is more important than issuing it. The burden is always on the Assessing Officer to prove with cogent evidence that not only notice was issued but it was also served upon the assessee. The First Appellate Authority (FAA) has held that the service of notice was highly doubtful.

At the time of hearing the revenue could not place any evidence of service of notice. The FAA has mentioned that the notice did not bear the PAN or the address of the assessee.

Considering these peculiar facts, it is opined that there is no proof of service of notice allegedly issued by the Assessing Officer under section 143(2).

In these circumstances, it is held that the order passed by the Assessing Officer for the year under consideration is invalid order and not sustainable in the eyes of law.

As far as the provisions of section 292BB are concerned, same do not cure the virus of non-issuance of the notice under section 143(2) especially when the assessee has raised said objection before completion of assessment proceedings.

Further for the assessment year 2002-03 to 2007-08 the FAA has held that in absence of service of notice issued under section 143(2) the order passed by the Assessing Officer were not maintainable. In the appellate proceedings, the Tribunal upheld the order of the FAA and held that assessment were invalid.

In view of aforesaid, appeal filed by the assessee stands allowed.

Provisions of section 292BB do not cure virus of non-issuance of notice under section 143(2)

Section 143, read with section 292BB, of the Income-tax Act, 1961 – Assessment – Issue of notice -Service of notice [2015] ITAT GUWAHATI – Rajib Saikia v. Assistant Commissioner of Income-tax, Circle-2, Guwahati

FACTS

An action under section 143(2) was carried out in the case of the assessee. Thereupon, the Assessing Officer completed the assessment under section 153A.

In appellate proceedings, the assessee raised an additional ground that no notice under section 143(2) was issued to him.

The Commissioner (Appeals) found that acknowledgement slip of notice bore signature of the Authorised Representative (AR) of the assessee but, he denied to have any authority to receive notice on behalf of the assessee. He also found that the notice did not bear the address or PAN of the addressee. Therefore, he held that service of the notice was highly doubtful.

However, the Commissioner (Appeals) finding that the assessee had participated in assessment proceedings, opined that the assessment made by the Assessing Officer was valid in terms of section. 292BB even if there was non-service of notice as per the provisions of the Act.

On the second appeal, it was Held

Service of notice is more important than issuing it. Burden is always on the Assessing Officer to prove with cogent evidence that not only notice was issued but it was also served upon the assessee. The First Appellate Authority (FAA) has held that the service of notice was highly doubtful. At the time of hearing the revenue could not place any evidence of service of notice. The FAA has mentioned that the notice did not bear the PAN or the address of the assessee.

Considering these peculiar facts, it is opined that there is no proof of service of notice allegedly issued by the Assessing Officer under section 143(2). In these circumstances it is held that the order passed by the Assessing Officer for the year under consideration is invalid order and not sustainable in the eyes of law.

As far as the provisions of section 292BB are concerned, same do not cure the virus of non-issuance of the notice under section 143(2) especially when the assessee has raised said objection before completion of assessment proceedings.

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