Failure to issue a notice under section 143(2) renders the assessment order void even if the assessee has participated in the proceedings – Deeming fiction does not operate to save complete absence of notice


[5:38 PM, 6/13/2021] CA Vinay Mittal: Facts A search and seizure operation was conducted at premises of the Assessee who was carrying on brokerage business. He submitted his return and assessment was completed under section 143(3) making addition on account of unexplained cash. On Appeal, the CIT(A) deleted the addition. The Department filed an appeal to the Tribunal. The Assessee filed cross objections challenging the jurisdiction of the Assessing Officer on the ground that notice under section 143(2) had not been issued. The Tribunal allowed the cross objection filed by the Assessee. This view was upheld by the High Court.


Held The failure to issue a notice under section 143(2) renders the assessment order void even if the Assessee has participated in the proceedings. Section 292BB does not save complete absence of notice. For section 292BB to apply, the notice must have emanated from the department. (Related Assessment year : 2010-11) – [CIT v. Laxman Das Khandelwal (2019) 417 ITR 325 : 310 CTR 8 : 266 Taxman 171 : 180 DTR 313 : 108 taxmann.com 183 (SC)