If the assessee says its original return should be treated as the return in response to s.148, must the Assessing Officer still issue a fresh s.143(2) notice?
The assessee told the Assessing Officer that its original return be treated as filed in response to the s.148 notice. The officer then completed the reassessment without issuing any notice under s.143(2). The Delhi High Court held the omission fatal and held that s.292BB cures defective service of a notice, not the failure to issue one at all.
Decided by the High Court (Delhi High Court, Division Bench — Dr. S. Muralidhar and Vibhu Bakhru, JJ.; ITA 519/2015) on 2015-10-14, reported as ITA 519/2015 (Delhi High Court), judgment dated 14 October 2015; 2015 (10) TMI 1765 (Del). It bears on section 143(2), section 148, section 292BB of the Income Tax Act 1961, in Assessment & Scrutiny and Reassessment & Reopening matters.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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For AY 2008-09 the assessee's return had been processed. The Assessing Officer issued a notice under s.148 and an earlier s.143(2) notice, neither of which was served. On 16 December 2010 the assessee's representative appeared and stated that the return already filed should be treated as the return in response to s.148. No fresh notice under s.143(2) was issued thereafter, and the reassessment was completed. The Tribunal annulled the reassessment and the Revenue appealed.
The failure of the Assessing Officer to issue a notice under s.143(2) after the assessee indicated that its original return be treated as the return filed in response to the s.148 notice is fatal to the reassessment order. Section 292BB does not assist the Revenue, because it operates where a notice has been issued but its service is disputed; it does not save a case where the notice was never issued.
Once the return is on the table in reassessment proceedings, the officer who intends to depart from it must issue the statutory notice that opens the enquiry; without it the assessee never gets the opportunity the statute guarantees. Section 292BB is a deeming provision about service and is expressly framed around an assessee who 'has appeared' or 'co-operated' after a notice has been issued, so it presupposes issue. Participation in the proceedings cannot therefore supply a notice that does not exist. The Court read Hotel Blue Moon as settling that the requirement is mandatory rather than procedural.
The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act, is fatal to the order of re-assessment.
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Handle my notice → Ask a CA on WhatsAppThe assessee told the Assessing Officer that its original return be treated as filed in response to the s.148 notice. The officer then completed the reassessment without issuing any notice under s.143(2). The Delhi High Court held the omission fatal and held that s.292BB cures defective service of a notice, not the failure to issue one at all. This was decided by the High Court (Delhi High Court, Division Bench — Dr. S. Muralidhar and Vibhu Bakhru, JJ.; ITA 519/2015) and bears on section 143(2), section 148, section 292BB of the Income Tax Act 1961. It is reported as ITA 519/2015 (Delhi High Court), judgment dated 14 October 2015; 2015 (10) TMI 1765 (Del). If it applies to you, the first step is this: When you write to the Assessing Officer adopting the original return as the s.148 return, diarise the s.143(2) outer date from that letter.
For AY 2008-09 the assessee's return had been processed. The Assessing Officer issued a notice under s.148 and an earlier s.143(2) notice, neither of which was served. On 16 December 2010 the assessee's representative appeared and stated that the return already filed should be treated as the return in response to s.148. No fresh notice under s.143(2) was issued thereafter, and the reassessment was completed. The Tribunal annulled the reassessment and the Revenue appealed. The matter was decided on 2015-10-14 by the High Court (Delhi High Court, Division Bench — Dr. S. Muralidhar and Vibhu Bakhru, JJ.; ITA 519/2015). On those facts the High Court held as follows. The failure of the Assessing Officer to issue a notice under s.143(2) after the assessee indicated that its original return be treated as the return filed in response to the s.148 notice is fatal to the reassessment order. Section 292BB does not assist the Revenue, because it operates where a notice has been issued but its service is disputed; it does not save a case where the notice was never issued.
Once the return is on the table in reassessment proceedings, the officer who intends to depart from it must issue the statutory notice that opens the enquiry; without it the assessee never gets the opportunity the statute guarantees. Section 292BB is a deeming provision about service and is expressly framed around an assessee who 'has appeared' or 'co-operated' after a notice has been issued, so it presupposes issue. Participation in the proceedings cannot therefore supply a notice that does not exist. The Court read Hotel Blue Moon as settling that the requirement is mandatory rather than procedural. In the words reproduced by the source cited on this page: "The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act, is fatal to the order of re-assessment."
It was decided by the High Court on 2015-10-14 and is reported as ITA 519/2015 (Delhi High Court), judgment dated 14 October 2015; 2015 (10) TMI 1765 (Del). Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section 143(2), section 148, section 292BB, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. The failure of the Assessing Officer to issue a notice under s.143(2) after the assessee indicated that its original return be treated as the return filed in response to the s.148 notice is fatal to the reassessment order. Section 292BB does not assist the Revenue, because it operates where a notice has been issued but its service is disputed; it does not save a case where the notice was never issued. It arises in Assessment & Scrutiny and Reassessment & Reopening matters, on section 143(2), section 148, section 292BB of the Income Tax Act 1961, and was decided by Delhi High Court, Division Bench — Dr. S. Muralidhar and Vibhu Bakhru, JJ.; ITA 519/2015. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Keep a copy of the letter or ITBA acknowledgement; it fixes the date from which the notice period runs. If no s.143(2) notice follows, raise the ground before the CIT(A) and again before the Tribunal as a jurisdictional plea. Plead the non-issue expressly, and rebut s.292BB by pointing to the absence of any notice on the record rather than to non-receipt. Ask for inspection of the assessment folder to establish that nothing was generated, since the Department often produces a notice later.
Still good law. Separate check: the reasoning was carried into the Supreme Court's decision in CIT v Laxman Das Khandelwal (2019), which held that complete absence of a s.143(2) notice is not curable under s.292BB; the Delhi judgment continues to be cited with a line of High Court authority to the same effect. That finding was checked against a published source, which is linked on this page, on 2026-08-19. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The failure of the Assessing Officer to issue a notice under s.143(2) after the assessee indicated that its original return be treated as the return filed in response to the s.148 notice is fatal to the reassessment order. Section 292BB does not assist the Revenue, because it operates where a notice has been issued but its service is disputed; it does not save a case where the notice was never issued.
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