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II. Useful Updates:
1. ALPINE ELECTRONICS ASIA PTE LTD. Vs. DIRECTOR GENERAL OF INCOME TAX & OTHERS, WRIT PETITON (CIVIL) NO. 7932/2010, Date of Decision: 24th January 2012, HIGH COURT OF DELHI
The AO issued a notice u/s 148 to reopen the assessment. Though the assessee filed a ROI, the AO did not issue notice u/s 143(2) within the prescribed period but passed a draft assessment order u/s 144C. HELD by the Court quashing the assessment proceedings:
(i) The service of notice u/s 143(2) within the statutory time limit is mandatory and is not an inconsequential procedural requirement. Omission to issue notice u/s 143(2) is not curable and the requirement cannot be dispensed with section 143(2) is applicable to proceedings u/s 147 & 148. While the Proviso to section148 protects and grants liberty to the Revenue to serve notice u/s 143(2) before passing of the assessment order for returns furnished on or before 1.10.2005, in respect of returns filed pursuant to notice u/s 148 after 1.10.2005, it is mandatory to serve notice u/s 143(2) within the stipulated time limit.
(ii) Section 292BB incorporates the principle of estoppel and stipulates that an assessee who has appeared in any proceeding and co-operated in any enquiry relating to assessment or reassessment shall be deemed to be served with any notice which was required to be served and would be precluded from objecting that the notice was not served upon him or was served upon him in an improper manner or was not served upon him in time. However, the principle of estoppel does not apply if the assessee has raised objection in reply to the notice before completion of assessment or reassessment. As the AO had passed a draft assessment order and the assessee had raised an objection before completion of assessment, the estoppel in section 292BB did not apply and the section 147 proceedings could not continue.
(Click here to view Judgment)
2. THE COMMISSIONER OF INCOME TAX Vs SOFTWARE CONSULTANTS, ITA No. 914/2010, Date of Order : 17.01.2012, HIGH COURT OF DELHI
For exercise of power under Section 263 of the Act, it is mandatory that the order passed by the Assessing Officer should be erroneous and prejudicial to the interest of the Revenue. In the present case, the Assessing Officer did not make any addition for the reasons recorded at the time of issue of notice under Section 148 of the Act. This position is not disputed and disturbed by the Commissioner of Income Tax in his order under Section 263 of the Act. Sequitur is that the Assessing Officer could not have made an addition on account of share application money in the assessment proceedings under Section 147/148. Accordingly, the assessment order is not erroneous. Thus, the Commissioner of Income Tax could not have exercised jurisdiction under Section 263 of the Act.
(Click here to view judgment)
III. Today's Bottomline News :
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