Act of AO in framing an assessment order without issuing Notice u/s 143(2) cannot be saved by invoking s. 292B: ITAT [Read Order]

While hearing the case between Income Tax Officer and Neeraj Goel, Delhi bench of Income Tax Appellate Tribunal ( ITAT ) recently ruled that the act of the Assessing Officer in framing an assessment order without issuing notice under section 143(2) of the Income Tax Act 1961 cannot be saved by invoking section 292B of the Act.

The assessee in the instant case is an individual duly filed his return of income for the relevant assessment year.

During the course of assessment proceedings, the Assessing Officer (AO) has noticed that certain incomes regarding investment and purchase of property and also made additions while completing the assessment, but without issuing notice under section 143(2) of the Act to the Assessee.

Thereafter, the Assessee approached the CIT(A) and compiled the action of the AO. After perusing the material facts the authority granted relief to the Assessee and allowed the appeal filed by him. The authority held that it is an admitted fact that the AO has not issued notice under section 143(2) of the Act before completing the assessment proceedings.

The Authority further held that The assumption of jurisdiction to frame an assessment or non-assumption of jurisdiction to’ frame an assessment goes to the root of the judicial act of framing an assessment order and in the event of non-assumption of jurisdiction under section 143(2) to frame an assessment the act of the assessing officer in framing an assessment order without issuing notice under section 143(2) cannot be saved under the provisions of section 292B of Income Tax  Act, 1961 or under section 292BB of Income Tax Act, 1961. The assessment order so framed will be void abinitio for want of assumption of jurisdiction as assessment cannot be framed based upon jurisdiction calling for the Return of income.

Aggrieved by the order of the authority, the Revenue carried the matter before the Tribunal by appeal.

After considering the above narrated facts and circumstances of the issue, the Tribunal bench comprising of Judicial Member H.S.Sidhu observed that “the assumption of jurisdiction to frame an assessment or non-assumption of jurisdiction to frame an assessment goes to the root of the judicial act of framing an assessment order and in the event of non-assumption of jurisdiction under section 143(2) of the Act to frame an assessment the act of the Assessing Officer in framing an assessment order without issuing notice under section 143(2) cannot be saved under the provisions of section 292B of Income Tax Act, 1961 or under section 292BB of Income Tax  Act, 1961”.

The division bench further held that the assessment order so framed will be void ab-initio for want of assumption of jurisdiction as assessment cannot be framed based upon jurisdiction calling for the Return of income and also upheld the order passed by the lower authority. Accordingly, the bench has dismissed the appeal of the Revenue while concluding the issue.