Absence of notice u/s 143(2) cannot be cured by application of Sec 292BB of IT Act: Delhi HC

Here is an interesting case as under:

Consortium Nussli Comfort Net (ITA 62/2022)

Short Overview of the case:

Facts:

 1. The AO contended that assessee had appeared and cooperated in the assessment proceedings and had not raised any objection about non-service of notice under Section 143(2) of the Income Tax Act, 1961 during the entire assessment proceedings and therefore, the assessee was precluded from taking any objection that the notice was not issued in time in accordance with Section 292BB of the Act.

 2. The assessee maintained that Section 292BB does not give the power to condone the failure or delay in issuing the statutory notice required to be issued under Section 143(2) of the Act.

Absence of notice u/s 143(2) cannot be cured by application of Sec 292BB of IT Act: Delhi HC

Sec 292BB puts bar on assessee as far as raising objection with respect to a) service of notice, b) time of service of notice & c) manner of service of notice, is concerned, if the assessee either appears in any proceeding or co-operates in any enquiry relating to assessment or reassessment.

Hon. Delhi HC held as below:

 1. For Section 292BB to apply, the notice must have emanated from the Department. It is only the infirmities in the manner of service of notice that the Section seeks to cure.

 2. The failure of the AO, in assessment proceedings, to issue notice under Section 143(2) of the Act, prior to finalising the assessment order, cannot be condoned by referring to Section 292BB of the Act.