Second notice under Section 143(2)
Suresh Pathak
(Querist) 02 May 2011
This query is : Resolved
Hi guys. I have reviewed almost all available literature and have still not reached a conclusive decision on this following issue.
The relevant assessment year is 06-07 for which this query is being posted.
An assessee received the first notice under Section 143(2) within the stipulated time period. The assessee attended all subsequent meetings and gave all the required documents. The AO in the meanwhile got transferred. The new AO issued a new notice under Section 143(2) and demanded further information. The assessee participated in the proceedings thereon and was assessed for a higher income thereon. However, this new notice under Section 143(2) was beyond the stipulated time. The Income Tax Act of India for that particular assessment year 06-07 clearly stipulates that "no notice under Section 143(2) can be issued after the stipulated period."
In my view, this new notice issued by the AO is void, invalid and illegal.
The Supreme Court has in one judgement held that proceedings held post an invalid notice are void per se.
I request you to give your views on what would be your stand on this issue. Is the new notice invalid? Would the proceedings and assessment held on the basis of this new notice be also invalid?
Thanks
soumitra basu
(Expert) 05 May 2011
You are absolutely right in your opinion that notice under section 143 (2), if not issued within the stipulated time, the Income Tax Officer shall not have any jurisdiction to assess.
Since the 2nd notice is invalid and the assessment has made on the basis of 2nd notice, then the entire proceeding is liable to be annuled.
