August 27, 2014[2014] 47 taxmann.com 383 (Ahmedabad - Trib.)/[2014] 161 TTJ 39 (Ahmedabad - Trib.)
IT: Set off of business loss against addition under section 68 to be allowed
ALLAHABAD HIGH COURT
-
Income Tax
Validity of belated notice u/s 143(2) in
pursuance of section 292BB - scrutiny assessment - Assessee
had cooperated with the proceedings – - Held that:- The Tribunal had rightly noted that the AO had recorded in the order of assessment that a notice u/s 143 (2) of the Act was issued on 6 October 2009 much beyond the period prescribed u/s 143(2) of the Act which was till 30 September 2009 - no notice u/s 143(2) of the Act was issued within the prescribed period, the Tribunal rightly held that the assessment was not valid - where the AO fails to issue a notice within the period of six months as spelt out in the proviso to clause (ii) of Section 143 (2) of the Act, the assumption of jurisdiction u/s 143 (3) of the Act would be invalid.
The defect in regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction u/s 292BB of the Act - Section 292 BB of the Act cannot come to the aid of the revenue in a situation where the issuance of a notice itself was not within the prescribed period, in which event the question of whether it was served correctly or otherwise, would be of no relevance whatsoever - Failure to issue a notice within the prescribed period would result in the AO assuming jurisdiction contrary to law – thus, the order of the Tribunal is upheld – Decided against Revenue.
had cooperated with the proceedings – - Held that:- The Tribunal had rightly noted that the AO had recorded in the order of assessment that a notice u/s 143 (2) of the Act was issued on 6 October 2009 much beyond the period prescribed u/s 143(2) of the Act which was till 30 September 2009 - no notice u/s 143(2) of the Act was issued within the prescribed period, the Tribunal rightly held that the assessment was not valid - where the AO fails to issue a notice within the period of six months as spelt out in the proviso to clause (ii) of Section 143 (2) of the Act, the assumption of jurisdiction u/s 143 (3) of the Act would be invalid.
The defect in regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction u/s 292BB of the Act - Section 292 BB of the Act cannot come to the aid of the revenue in a situation where the issuance of a notice itself was not within the prescribed period, in which event the question of whether it was served correctly or otherwise, would be of no relevance whatsoever - Failure to issue a notice within the prescribed period would result in the AO assuming jurisdiction contrary to law – thus, the order of the Tribunal is upheld – Decided against Revenue.
No comments:
Post a Comment