IN INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA No. 4677/DEL/2018 [A.Y 2010-11] Shri Atul Kumar Jain Vs. Income tax Officer 12-13, Sadar Chowk Bazar Ward 1(1) Meerut Cantt. Meerut PAN: AAMPJ9787 H (Applicant) (Respondent) Assessee By : Shri Deepak Jain, CA Shri Viral Jain, CA Department By : Shri S.L. Anuragi, Sr. DR Date of Hearing : 04.09.2019 Date of Pronouncement : 04.09.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, This appeal by assessee is preferred against order of Commissioner of Income Tax [Appeals], Meerut dated 24.04.2018 pertaining to assessment year 2010-11. 2 2. Representatives of both sides were heard at length. Case records carefully perused. 3. Assessment has been framed u/s 144 r.w.s 147 of Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] vide order dated 22.12.2017. perusal of order sheet entries, exhibited at pages 13 to 15 of Paper Book clearly reveals that Assessing Officer has never issued notice u/s 143(2) of Act. Issue of notice u/s 143(2) of Act is mandatory and non-issuance of such notices makes assessment order null and void, ab initio. This issue has been well settled by Hon'ble Supreme Court in case of Laxman Dass Khandelwal in Civil Appeal Nos. 6261 & 6262 /2019 wherein Hon'ble Supreme Court has reiterated ratio laid down in case of Hotel Blue Moon 3 SCC 259. relevant findings read as under: law on point as regards applicability of requirement of notice under Section 143(2) of Act is quite clear from decision in Blue Moon s case. issue that however needs to be considered is impact of Section 292BB of Act. 3 9. According to Section 292BB of Act, if assessee had participated in proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. I he scope of provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of assessee. It is, however, to be noted that Section does not save complete absence of notice. For Section 292BB to apply, notice must have emanated from department. It is only infirmities in manner of service of notice that Section seeks to cure. Section is not intended to cure complete absence of notice itself. 10. Since facts on record are clear that no notice under Section 143(2) of Act was ever issued by Department, findings rendered by High Court and Tribunal and conclusion arrived at were correct. We, therefore, see no reason to take different view in matter. 4. Respectfully following ratio laid down by Hon'ble Supreme Court [supra], we hold that assessment order is bad in law and deserves to be quashed. 4 5. In result, appeal of assessee in ITA No. 4677/DEL/2018 is allowed. order is pronounced in open court on 04.09.2019. Sd/- Sd/- [SUCHITRA KAMBLE] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 04th September, 2019 VL/ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi 5 Date of dictation Date on which typed draft is placed before dictating Member Date on which typed draft is placed before Other Member Date on which approved draft comes to Sr.PS/PS Date on which fair order is placed before Dictating Member for pronouncement Date on which fair order comes back to Sr.PS/PS Date on which final order is uploaded on website of ITAT Date on which file goes to Bench Clerk Date on which file goes to Head Clerk date on which file goes to Assistant Registrar for signature on order Date of dispatch of Order. Atul Kumar Jain v. Income-tax Officer, Ward 1(1), Meerut