Shripriya Agarwal vs National Faceless Assessment Centre

PER VIKAS AWASTHY, JM:

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short ‘the CIT(A)’] dated 23.12.2025, for Assessment Year 2017-18.

Ms. Ananya Kapoor, appearing on behalf of the assessee, submits that the assessment order passed u/s 147 r.w.s. 144B of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 31.03.2022 suffers from a jurisdictional defect, as the said assessment order has been passed without issuance of mandatory notice u/s.143(2) of the Act. She submitted that non-issuance of notice u/s.143(2) of the Act is fatal to the assessment. Narrating sequence of events, the Id. Counsel submits that notice u/s.148 of the Act was issued to the assessee on 31.03.2021. In response to the said notice, the assessee filed a reply on 04.03.2022 requesting the Assessing Officer (AO) to consider the return of income filed by the assessee on 31.03.2018 u/s 139 of the Act as the return in response to notice u/s 148 of the Act. The AO, in the initial part of reassessment order notes that the original return cannot be treated as a return filed in response to notice u/s.148 of the Act. Thereafter, the AO proceeds to make the assessment u/s.147 of the Act without issuing notice u/s. 143(2) of the Act to the assessee.

During first appellate proceedings, the assessee raised a specific ground challenging validity of the assessment proceedings in absence of mandatory notice u/s.143(2) of the Act. The CIT(A), in para 5.2.1 of the impugned order, recorded the objections raised by the assessee regarding non-issuance of notice u/s.143(2) of the Act. Thereafter, in para 5.2.6, the CIT(A) held that non-issuance of notice u/s.143(2) of the Act is a matter which goes to the merits of the assessment and not the validity of reopening proceedings. The CIT(A) further observed that the contention of the assessee would be dealt separately while examining the merits of the addition. However, while adjudicating merits of the addition, the CIT(A) remained silent on the objection raised by the assessee with regard to non-issuance of notice u/s.143(2) of the Act. The ld. Counsel submits that the CIT(A) has undermined the importance of statutory notice u/s. 143(2) of the Act. Various Hon’ble High Courts have repeatedly held that an assessment order passed without issuing notice u/s.143(2) of the Act is unsustainable. She thus prayed for quashing the assessment order.

Per contra, Shri Manoj Kumar, representing the Department vehemently defended the impugned order and prayed for dismissing appeal of the assessee. The ld. DR submits that the assessee has not filed return of income in response to notice issued u/s 148 of the Act; hence, the assessee cannot now plead that notice u/s 143(2) of the Act was not issued.

Both sides heard, orders of the authorities below examined. The assessee has questioned validity of the assessment order in the absence of mandatory notice u/s.143(2) of the Act. A perusal of the assessment order dated 31.03.2022 shows that there is no reference to issuance of notice u/s 143(2) of the Act. Further, the AO refused to accept the request of the assessee to treat the original return filed on 31.03.2018 as a return in response to notice issued u/s 148 of the Act. However, the AO ultimately completed the assessment by considering the income declared in the original return of income. If the assessee in response to notice u/s.148 of the Act conveys to the AO that the original return of income filed be treated as return of income u/s.148 of the Act, it is sufficient compliance. Therefore, the contention of the ld. DR that no return of income was filed by the assessee in response to notice u/s 148 of the Act, is without merit.

The assessee had raised a specific ground before the First Appellate Authority challenging validity of the assessment without issuance of notice u/s 143(2) of the Act. The CIT(A) neither called for a report from the AO nor adjudicated the jurisdictional ground. The CIT(A) merely observed that the issue would be examined while adjudicating merits of the addition. In the first place, the understanding of the CIT(A) that non-issuance of notice u/s 143(2) of the Act is not a jurisdictional issue is erroneous. The challenge to non-issuance of notice u/s 143(2) of the Act goes to the root of validity of the assessment. Non-issuance of such notice is a fatal defect which cannot be cured. The Hon’ble Delhi High Court in the case of PCIT vs. M/s. Dart Infrabuild Pvt. Ltd., ITA No.10/2022 decided on 17.11.2023, has held that an assessment order framed without issuing notice u/s 143(2) of the Act is unsustainable in law. Such an infraction, being a jurisdictional defect, renders the assessment order untenable in the eyes of law.

In the instant case, the AO has neither before the CIT(A) nor before the Tribunal brought on record any notice, issued u/s.143(2) of the Act to the assessee. In the absence of mandatory notice, the assessment order dated 31.03.2022 passed by the AO is legally unsustainable, hence, quashed.

In the result, impugned order is set aside and appeal of the assessee is allowed.