No s.143(2) Notice Voids Reassessment: SC in Orissa Mining

Supreme Court Holds Section 143(2) Notice Mandatory in Reassessment; Section 292BB Cannot Cure Its Absence

Published: 29 October 2026 · NyayVidhan

The Supreme Court dismissed the Revenue's appeals against Orissa Mining Corporation Ltd. and Bijoy Kishore Mohanty, holding that reassessments framed without a notice under Section 143(2) of the Income Tax Act are vitiated. Section 292BB does not save a notice that was never issued, even where the assessee took part in the proceedings; the duty survives a request that the original return be treated as the return under Section 148; and a Section 142(1) letter is no substitute (paras 20-24).

Key holdings

Section 292BB does not bar an objection that no Section 143(2) notice was issued, even if the assessee appeared and cooperated in reassessment without objecting (paras 16, 23).

The Revenue must serve a Section 143(2) notice even where the assessee asks that its original Section 139 return be treated as its Section 148 return (paras 18, 23).

A Section 142(1) letter asking the assessee to explain the reassessment grounds is not compliance with Section 143(2) (paras 22-23).

Following Hotel Blue Moon, the omission of a Section 143(2) notice is not a curable irregularity and vitiates the reassessment (paras 12, 20).

Judgment digest by NyayVidhan: a summary of the court's judgment, not its text. The judgment itself is the authoritative version.

Brief Facts

Orissa Mining Corporation Ltd. (assessment years 2008-09, 2010-11 and 2011-12) and Bijoy Kishore Mohanty (2009-10 and 2010-11) had their returns assessed under Section 143(3) (paras 2, 4). The Revenue reopened the assessments under Section 147 and issued notices under Section 148. The Corporation asked that its original return be treated as its response; Mohanty refiled the same return (paras 4-5). Admittedly no Section 143(2) notice followed, though Section 142(1) notices sought documents and stock information (para 6). The Commissioner (Appeals) rejected the objection because the assessees had participated, but the Income Tax Appellate Tribunal set the reassessments aside and the High Court upheld that view (paras 7-10).

Court's Findings

Following Hotel Blue Moon, omitting the Section 143(2) notice is not a curable procedural irregularity: the notice is a sine qua non for reassessment under Section 147, and without it no further proceedings can be taken (paras 12-13, 20). Section 292BB creates a deeming fiction about service: an assessee who appeared or cooperated cannot object that a notice was not served, served late or served improperly. That fiction operates only where the Revenue says a notice was sent; it has no application where the Revenue admits none was issued (paras 15-16). Mere participation does not give the Assessing Officer jurisdiction to assess under Section 143(3) (para 17), and Laxman Das Khandelwal confirms that Section 292BB does not save a complete absence of notice (para 21). An assessee may answer a Section 148 notice by stating that its earlier return be treated as the return; having reiterated their returns, the assessees were still owed a Section 143(2) notice to produce evidence in support (para 18). A Section 142(1) letter during reassessment does not satisfy Section 143(2): a letter issued after the proceedings begin cannot validate what is non est (para 22).

Legal Principle

A notice under Section 143(2) is a mandatory precondition for reassessment under Section 147, and its omission is not curable. Section 292BB only deems a notice actually sent to have been duly served; it cannot supply a notice never issued, whatever the assessee's participation, and a Section 142(1) letter cannot take its place (paras 15-16, 20-23).

NyayVidhan's view · Practice note

Why It Matters

For an assessee facing a reopened assessment, this judgment makes the Section 143(2) notice a threshold check: if none was issued after the return filed or adopted in answer to the Section 148 notice, the reassessment falls, and taking part in the proceedings without objecting does not waive the point (paras 17, 21-23). Section 142(1) letters seeking documents or explanations will not fill the gap (para 22). The case turned on an admitted non-issuance (paras 14, 20); the judgment says nothing on when the notice must be served. Read it with Chetan Sabharwal, decided the same day, on reopening and change of opinion.

Editorial comment by the NyayVidhan Editorial Desk. It is not part of the Court's judgment and is not legal advice.

Precedents Relied Upon

Assistant Commissioner of Income Tax and Another vs. Hotel Blue Moon (2010) 3 SCC 259
Followed Discussed at ¶ 12, 13, 20
Omitting the notice under Section 143(2) is not a curable procedural irregularity; where the Assessing Officer intends an enquiry he must follow Sections 142, 143(2) and 143(3), and the notice is a sine qua non for reassessment under Section 147. Followed to hold the reassessments vitiated for want of that notice.
Commissioner of Income Tax vs. Laxman Das Khandelwal (2021) 18 SCC 691
Relied Upon Discussed at ¶ 21
Section 292BB makes a notice with certain infirmities in service proper and valid where the assessee participated; it does not save the complete absence or non-issuance of a Section 143(2) notice. Relied on to hold that the assessees' participation did not help the Revenue.