I. Issue vs Service of Notice u/s. 143(2)

1. [TS-11-HC-2006(DEL)-O]: “Issue” & “service” of notice are two separate events - HC rules in favour of assessee; Holds notice u/s 143(2) served on the assessee one day beyond the time limit, though issued before the prescribed time, as invalid; Holds that notice issued is not valid if issued before the end of the prescribed time, however received by assessee after the prescribed period...read more

2. [TS-5710-HC-2014(ALLAHABAD)-O] : Absence of a valid notice u/s 143(2) renders the assumption of jurisdiction by the AO, and thereby the assessment framed u/s. 143(3) invalid – HC dismisses Revenue’s appeal for AY 2008-09, holds that “where the Assessing Officer 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 under Section 143 (3) of the Act would be invalid.”; Further holds that this defect in regard to the assumption of jurisdiction cannot be cured by taking recourse to the deeming fiction u/s 292 BB (which deems a notice to be valid once the assessee has appeared or cooperated in any assessment or reassessment proceeding)...read more

II. Issue of non-issuance of notice u/s 143(2) raised for the first time before Appellate Authorities

3. [TS-5889-HC-2010(PUNJAB)-O] : Non issue of notice u/s. 143(2), a question of fact, cannot be raised for the first time before the Tribunal – HC dismisses assessee’s appeal; Follows MP HC decision in Premium Capital Market & Investment Ltd. [TS-5014-HC-2005(MADHYA PRADESH)-O] where it was held that question of validity of notice may not be allowed to be raised for the first time in appeal and holds that “Subsequent legislative amendment adding section 292BB supports this principle.”...read more

4. [TS-5313-HC-2011(PUNJAB & HARYANA)-O] : Once assessee files a return in response to notice Sec. 148 and raises no objection regarding valid service of notice before the AO, it cannot question the validity of notice during appellate proceedings – HC rules in favour of Revenue for AY 1998-99; Refers to Sec. 292BB (which deems a notice to be valid once the assessee has appeared or cooperated in any assessment or reassessment proceeding) and Circular No. 1 of 2009 which provided that the provision of new s. 292BB shall apply in all proceedings which are pending on 1st April, 2008...read more

III. Notice u/s.143(2) in cases of reopening u/s. 147

5. [TS-5736-HC-2015(DELHI)-O] : Failure by the AO to issue a notice to the assessee u/s 143(2) subsequent to letter by assessee to treat the original return as a return pursuant to notice u/s. 148, is fatal to the order of re-assessment - HC holds in favour of assessee; Rejecting Revenue’s reliance on Sec. 292BB, holds that “That provision would apply insofar as failure of “service” of notice was concerned and not with regard to failure to “issue” notice” and further that Section 292 BB of the Act cannot obviate the requirement of complying with a jurisdictional condition...read more

6. [TS-653-HC-2011(DEL)-O] : Issuance of notice u/s 143(2) not mandatory requirement for assessment u/s 147 - HC rules in favour of Revenue; Holds that in the absence of any specific provision u/s 147, the issuance of notice u/s 143(2) could not be held to be a mandatory requirement; Therefore, issuance of the notice u/s 143(2) is not required for the assessment made u/s 147...read more

IV. Notice u/s.143(2) in cases of block assessments u/s. 158BC

7. [TS-113-SC-2010-O] : Failure by AO to issue notice u/s 143(2) not 'procedural irregularity'; such failure is incurable - SC dismisses Revenue’s appeal; Holds that where the AO in repudiation of the return filed u/s 158BC(a) (Procedure for Block assessment) proceeds to make an enquiry, he has necessarily to follow the provisions of Secs. 142, 143(2) and 143(3); Observes that even for the purpose of Chapter XIV-B of the Act, for the determination of undisclosed income for a block period u/s 158BC, the provisions of Secs. 142, 143(2) and 143(3) are applicable and no assessment could be made without issuing notice u/s 143(2)...read more

V. Notice u/s.143(2) in cases of search & seizure u/s. 153A

8. [TS-406-HC-2011(DELHI)-O] : Issue of notice u/s 143(2) for AY 2004-05 is not mandatory for finalization of assessment u/s 153A - HC rules in favour of Revenue; Holds that “The use of the words, 'so far as may be’ cannot be stretched to the extent of mandatory issue of notice under s. 143(2). As is noted, a specific notice was required to be issued under cl. (a) of sub-s. (1) of s. 153A calling upon the persons searched or requisitioned to file return. That being so, no further notice under s. 143(2) could be contemplated for assessment under s. 153A.”...read more

VI. Completion of Assessment' in a case where a draft assessment order is passed

9. [TS-37-HC-2012(DEL)-O] : Principle of estoppel incorporated in Sec. 292BB would not apply, if the assessee has raised any objection regarding issuance of notice u/s 143(2) pursuant to passing of draft assessment order u/s 144C but before passing of final assessment order u/s 143(3) – HC allows assessee’s writ for AYs 2003-04 to 2006-07; Quashes reassessment proceedings as notice u/s 143(2) was not served on the assessee within the stipulated time...read more

VII. Notice u/s. 143(2) to Legal Reresentatives of an assessee

10. [TS-5042-SC-1996-O] : Non-service of notice u/s 143(2) for AYs 1965-66 to 1967-68 to 9 out of 10 legal representatives of the deceased did not invalidate the order of the AO relating to the AY in question - SC rules in favour of Revenue; Holds that HC was not right in holding that the assessment orders made are null and void since at the worst, they are defective proceedings—or irregular proceedings; Notices u/s. 143(2) & 143(3) were issued to one of the 10 representatives of the deceased assessee, which was complied with by the said representative; The assessment order however mentioned names of all the 10 representatives; The representative filed an appeal claiming the assessment order u/s. 143(3), to be null and void on the ground that notices were not issued to the remaining 9 persons; Rejecting the claim, the SC holds that “...an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions (charging sections).”...read more