Info Memo
Provisions of Sec. 292BB won’t cure defect of non-issuance of notice u/s 143(2)

By Lekha Bangera on 17-08-2019
Posted in Direct Tax

  Provisions of Sec. 292BB won’t cure defect of non-issuance of notice u/s 143(2)

     

                        CIT v. Laxman Das Khandelwal

                       [2019] 108 taxmann.com 183 (SC)

Ratio:

In a recent ruling, the hon’ble Supreme Court has held that Sec 292BB seeks to cure only the infirmities in the manner of service of notice and the participation of the assessee in the proceedings does not intend to cure complete absence of notice itself.

Facts of the case:

Search and Seizure u/s 132 was carried out on the assessee individual on 11/03/2010. The assessee submitted ROI declaring total income of Rs.9,35,130/-. The assessment was completed u/s 143(3) r.w sec 153(D) of the Act. Additions on account of unexplained cash, jewellery, hundies and cash receipts were made. Aggrieved, the assessee filed an appeal before CIT(A) who ruled in assessee’s favour by partly deleting the said additions.

 

Held by ITAT:

On appeal being filed by the Revenue before ITAT, the assessee filed cross objection on the ground of jurisdiction of AO regarding non-issuance of notice u/s 143(2). The hon’ble ITAT placing reliance on the judgment passed by the hon’ble SC in case of ACIT v. Hotel Blue Moon [2010] 321 ITR 362  held that issue of notice u/s 143(2) for completion of regular assessment is a statutory requirement and non-issuance of the same is not a curable defect.

 

 

Issues before HC:

i.     Whether the issue of notice u/s 143(2) would be mandatory for the purpose of making assessment u/s 143(3) ?

ii. Whether the participation by the assessee in the proceedings cured the defect, if any, as per provisions of Sec 292BB ?

 

Held by High Court:

i. The hon’ble High Court relying upon the decision passed in case of ACIT v. Hotel Blue Moon (supra) held that  the AO in repudiation of the return filed, has to follow provisions u/s 142, sub section (2) and (3) of Sec 143.

ii.          The scope of the provisions of Sec 292BB is to make the service of the notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee and that this Section does not save complete absence of the notice.

 

Held by Supreme Court:

The hon’ble SC upheld the findings rendered and the conclusion arrived by the hon’ble ITAT and HC. It held that the AO had no valid jurisdiction to pass the assessment order in absence of notice u/s 143(2) that ought to be served to the assessee and,  that this defect cannot be cured by taking recourse to the provisions of sec 292BB. Hence, the foundation of the assessment order is bad in law and deserves to be quashed.

 

Acelegal Analysis:

There is a difference between patent and latent jusrisdiction. Patent jurisdiction cannot be aquired with consent whereas Latent jurisdiction can be aquired with aquisience of assessee. The SC held that ‘non issuance of notice’ is a patent illegality and hence will not get cured unlike latent illegality of irregularity in issuance of notice.  The SC held that Sec 292BB can cure only defect in irregularity in issuance of notice and that complete non- issuance cannot be cured even with participation of the assessee. Therefore, even though the assessee had participated in proceedings, the defect of non-issuance of notice is not cured u/s 292BB.

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