- (1.) THE appeal by the Revenue under Section 260A of the Income Tax Act, 1961(the Act) arises from a decision of the Income Tax Appellate Tribunal (Tribunal) dated 28 February 2014. The assessment year to which the appeal relates is AY 2008 -09. In support of the appeal, the Revenue has pressed the following questions of law at the hearing of the appeal : - "1) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in confirming the order of CIT (A) ignoring the effect of Section 292 BB specially when the assessee had cooperated with the proceedings. 2) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in confirming the order of CIT (A) that annulled the assessment order passed U/s 143(3) holding it void -ab -initio. 3) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in setting aside the assessment order and confirming the CIT (A) order without considering that where no objection regarding valid service has been taken before the completion of assessment, provisions of sec. 292 BB will be applicable or not; to the assessments on or after 01.04.2008."
(2.) THE assessee filed its return of income for AY 2008 -09 on 30 September 2008. The Assessing Officer issued a notice under Section 143(2) of the Act on 6 October 2009. The assessment proceedings were completed and an order of assessment was passed under Section 143(3) of the Act on 24 December 2010. In appeal, the Commissioner of Income Tax (Appeals) - II, Lucknow held that the notice under Section 143(2) of the Act was not issued within the period stipulated in that provision. Hence, the question of its service either within or beyond the time permitted or its improper service within the meaning of Section 292 BB of the Act would not according to the CIT (A) arise. In the view of the CIT (A), Section 292 BB of the Act operated to debar any challenge by the assessee, who appears before the Assessing Officer with respect to non -service, service within time or improper service of a notice, if the assessee had not raised such an objection before the completion of assessment or reassessment proceedings. In this view, it was held that Section 292 BB of the Act would not save a situation where the notice itself had not been issued before the expiry of the period of limitation since it could only cure a defect of service within the stipulated period.
(3.) THIS view of the CIT (A) has been confirmed in appeal by the Tribunal. The Tribunal observed that time has been specified for the issuance of a notice under Section 143(2) of the Act, for assuming jurisdiction over the assessee to complete the assessment. The Tribunal held that a notice under Section 143(2) of the Act is of a statutory nature through which the Assessing Officer assumes jurisdiction over the assessee to frame an assessment under Section 143(3) of the Act. If the jurisdiction was not properly assumed by the Assessing Officer by issuing a valid notice under Section 143(2) of the Act, the assessment so framed would be without a valid assumption of jurisdiction and would be invalid. In the present case, it was noted by the Tribunal that the Assessing Officer had recorded in the order of assessment that a notice under Section 143 (2) of the Act was issued on 6 October 2009 much beyond the period prescribed under Section 143(2) of the Act which was till 30 September 2009. Since no notice under Section 143(2) of the Act was issued within the prescribed period, the Tribunal held that the assessment was not valid. The appeal by the Revenue was consequently dismissed.;