TMI Blog2021 (9) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... Since in the present case it is fact on record that no notice u/s. 143(2) of the Act was issued, after return was filed by the assessee in response to notice issued u/s. 148 of the Act, the assessment order framed in both the cases is not sustainable in law. - Decided in favour of assessee. - ITA Nos. 1138/Chd/2019 & 1139/Chd/2019 - - - Dated:- 27-8-2021 - Satbeer Singh Godara, Member (J) And Annapurna Gupta, Member (A) For the Appellant : Sarbjit Garg, CA For the Respondents : Meenakshi Vohra, Addl. CIT ORDER Per Annapurna Gupta, Accountant Member The above appeals have been preferred by the different assessees against the separate orders of the Commissioner of Income Tax (Appeals)-3, Ludhiana both dated 01.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the grounds challenging the validity of the assessment so framed related to non-issuance of notice u/s. 143(2) in the re-assessment proceedings. A perusal of the assessment record, which was placed before us by the Ld. DR, reveals no mention of notice u/s. 143(2) of the Act being issued after the assessee filed return in response to the notice u/s. 148 of the Act. The order sheet entries in the assessment record/file relating to both the cases was noted by us to be identical recording the assessee to have filed return on 27.04.2017 in response to notice u/s. 148 of the Act issued to it on 30-03-18. Thereafter the order sheet records Notice u/s. 142(1) of the Act being issued on 02.07.2018 and there is no mention in the ordersheet of issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Assessee under Section 148 of the Act. He further submitted that with no discrepancy having been found by the AO in the returns for AYs 2005-06 till 2007-08, which were processed under Section 143 (1) of the Act, there was no occasion for the AO to issue a notice under Section 143 (2) of the Act. Mr. Sahni submitted that in the circumstances, the action of the AO in finalising the reassessment orders without notice under Section 143 (2) of the Act was justified. 18. The wording of Section 143(2)(ii) of the Act, which is applicable in the present case, requires the AO to be satisfied on examining the return filed that prima facie the Assessee has 'understated the income' or has 'computed excessive loss' or has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. 20. The proposal to reopen an assessment under Section 147 of the Act is to be based on reasons to be recorded by the AO. Such reasons have to be communicated to the Assessee. However, merely because the Assessee participates in the proceedings pursuant to such notice under Section 148 of the Act, it does not obviate the mandatory requirement of the AO having to issue to the Assessee a notice under Section 143(2) of the Act before finalising the order of the reassessment. 21. In this context reference may be made to the decision of the Madras High Court in Sapthagiri Finance Investments v. Income Tax Officer (supra) where again the Assessee did not file a return pursuant to Section 148 of the Act. The AO then issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of the Allahabad High Court in Commissioner of Income Tax v. Rajeev Sharma (supra) and Commissioner of Income-tax-II, Lucknow v. Salarpur Cold Storage (P.) Ltd. (supra) also reiterate the above legal position. As far as this Court is concerned, the decision in Director of Income Tax v. Society For Worldwide Interbank Financial Telecommunications (2010) 323 ITR 249 (Del) and the recent decision in Pr. CIT v. Shri Jai Shiv Shankar Traders Pvt. Ltd. (supra) hold likewise. 23. With the legal position being abundantly clear that a reassessment order cannot be passed without compliance with the mandatory requirement of notice being issued by the AO to the Assessee under Section 143(2) of the Act, the ITAT was in the present case righ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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