Bharat Sewa Sansthan vs. DCIT (ITAT Lucknow)

DATE: September 23, 2014 (Date of pronouncement)
DATE: October 5, 2014 (Date of publication)
AY: 1993-94
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Non-service of s. 143(2) notice does render s. 158BC assessment order if return is belated and assessee participated in assessment proceedings

In the instant case, undisputedly the return was not filed under section 139(1) of the Act, it was rather a belated return as it was filed on 19.1.1995 and due date for filing of return was 31.10.1993. The return of the assessee was, however, processed under section 143(1) of the Act on 22.2.1995. Thereafter notice under section 148 of the Act was issued on 20.5.1998 and in response thereto the return was filed on 10.8.1998. Therefore, the return of income was not filed within the period specified under section 148 of the Act and as per aforesaid order of the Patna Bench of the Tribunal, the Assessing Officer was not under any obligation to get the notice served under section 143(2) of the Act. Moreover, the assessee has joined the assessment proceedings and represented its case by putting appearance before the Assessing Officer on different dates, therefore, it cannot be said that the Assessing Officer has framed assessment without affording valid opportunity of being heard to the assessee. Since the issue of issuance of notice under section 143(2) of the Act in the case of reassessment or the block assessment has already been examined by the Tribunal in the light of various judicial pronouncements and legal provisions of the Act, we find no justification to re-adjudicate the issue afresh. However, for the sake of reference, we extract the relevant observation of the Tribunal made in the case of Chand Bihari Agrawal vs. ACIT (supra) as under:-

“Section 292BB gives statutory effect to the principle of waiver. Section 292BB provides that where an assessee has appeared or co-operated in any inquiry relating to an assessment or re-assessment, it shall be deemed that any notice under any provision of the Income-tax Act, which is required to be served upon him, has been duly served upon him. He is statutorily precluded from challenging, inter-alia, that the notice was not served upon him. Should an assessee, who has chosen to appear and co-operate in the inquiry u/s 143(2) without raising any objection, be allowed to raise the plea of non-service of notice? If he has any objection as to non-service of notice, nothing prevents him from taking the objection before the Assessing Officer. In fact, the proviso to section 292BB itself provides that the fiction of section 292BB would not apply where the assessee has raised objection before the Assessing Officer before completion of assessment or reassessment. In such a situation, i.e., a situation where the assessee takes the objection before the Assessing Officer as regards non-service, the Assessing Officer may, instead of proceeding with the matter, prefer to take other actions as permissible under law. Can an assessee, who, instead of taking the objection before the Assessing Officer as regards non service of the notice, cooperates with the Assessing Officer and thereby enables him to complete the assessment, be allowed to turn back and challenge the assessment on the ground of non-service of notice as per time provision?”

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