challenging service of notice u/s 143(2) is barred by operation of section 292BB as held by Hon’ble Supreme Court
ABACUS Case Law Citation
ABCAUS 3384 (2020) (09) ITAT
Important case law relied upon by the parties:
CIT Vs. Laxman Das Khandelwal,  108 taxmann.com 183 (SC)
In the instant case, the assessee had challenged the order passed by the CIT(A) in confirming addition made by the Assessing Officer (AO) towards sundry creditors and advance from parties.
The assessee raised additional ground alleging that service of notice u/s. 143 (2) of the Income Tax Act, 1961 (the Act) was not served in time by the department and the objections raised before the AO and CIT(A) were not considered or recorded in passing orders and therefore the order has to be quashed.
Before the Tribunal, the assessee submitted that the assessment order was passed by the ITO who was different from ITO who had issued notice u/s 143(2). The ITO who completed the assessment had not issued further fresh notice u/s 143(2) for change of the incumbency.
According to the assessee he had objected the issue of non service of the notice u/s 143(2) of the Act before the AO as well as CIT(A) but both the officers did not take any cognizance in this regard and there was no any deliberation in the order passed by them.
The Revenue contended that the assessee appeared before the AO and did not object regarding issuance and service of notice and the assessee/AR appeared from time to time and filed details information before the AO. There was no emanating from the record of the AO as well as the CIT(A) that the assessee had taken any objections regarding service of the notice.
Relying on the judgment of the Hon’ble Supreme Court, the Revenue stated that the assessee participated in the assessments and appeared from time to time before the AO and there was evidence regarding issuance of the notice u/s 143(2) of the Act which had not been returned unserved. Therefore, it would be presumed that the letter sent for selection of scrutiny u/s.143(2) of the Act has been duly served to the assessee and participated in the assessment proceedings.
It was also stated that the notice was generated through online on the basis of address mentioned in the PAN data Base of the assessee which had never changed. The assessment had rightly been completed by the jurisdictional AO and the jurisdiction had also not been objected by the assessee at any stage of the assessment proceedings as well as in the appellate proceedings.
Challenging service of notice u/s 143(2) barred by section 292BB
The Tribunal noted that the Hon’ble Supreme Court had held that according to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision of section 292BB is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee.
The Hon’ble Supreme Court however clarified that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.”
The Tribunal noted that the notice had been issued and duly dispatched to the assessee as per the Dispatch records and the notice had not been returned unserved. Also, it was clear from the order sheet that the assessee had appeared from time to time before the Assessing Officer (AO).
In view of the above and following the decision of the Hon’ble Supreme Court, the Tribunal dismissed the legal grounds raised by the assesse.
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