TMI Blog2023 (11) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, instead of contesting the assessment orders on merits, the petitioner approached this Court. Hence, do not find that these writ petitions are maintainable. Non-service of notice u/s 143(2) of the Act is also liable to be rejected. In as much as the petitioner was issued notice in Annexure-R(a) and in pursuance to the said notice, the petitioner had participated in the proceedings for re-opening of the assessment orders, which is evident from the order sheet maintained before the assessing officer. Therefore, if the notice, Annexure-R(a) did not mention the provision under Section 143(2) of the Act, the same would not become invalid because of non-mentioning of the provision of Section 143(2). What is relevant is notice of hearing and the petitioner was issued notice of hearing. In substance, the notice in Annexure-R(a) was a notice under Section 143(2). Therefore, find no substance in the submission of petitioner that the petitioner was not served with notice under Section 143(2) of the Act, and therefore, the subsequent proceedings and assessment orders had become bad in law and are liable to be set aside. The judgment cited by the learned counsel for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipts, notices under Section 148 of the Act were issued to the petitioner on 21.3.2013 and 28.3.2014 for the assessment years 2008-09 and 2007-08, respectively. In response to the said notices, the petitioner had filed revised return showing the very same income, on 5.2.2014 and 13.10.2014, respectively. The cases were posted for hearing and Sri.D.Sreekumar, the authorised representative of the assessee, had appeared on the dates fixed and produced necessary details. 3. The assessments for the years 2009-10 and 2010-11 were completed by taking gross receipts at 261.194% of the declared receipts. The same was arrived at by relying on the materials found at the time of survey under Section 133A of the Act. During the assessment years 2007-08 and 2008-09 also, it was proposed to adopt the gross receipts based on the same lines adopted for the assessment years 2009-10 and 2010-11. A pre-assessment letter was issued to the petitioner-assessee on 21.3.2014 proposing to adopt gross collection of Rs.2,18,65,905/- for the assessment year 2008-09, and after deduction of the expenses claimed in the Profit and Loss Account, the rest of the income was treated to be as the escaped assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sole ground alone, these writ petitions are liable to be dismissed. However, this Court obliges to deal with the other contentions raised by the learned counsel for the petitioner. 5. The next submission advanced on behalf of the learned counsel for the petitioner is that the petitioner was not issued notice under Section 143(2) of the Act before proceeding to finalise the assessments under Section 143(3) read with Section 147 of the Act. The submission is that in the absence of valid notice under Section 143(2) of the Act, the subsequent proceedings and assessment orders passed under Section 143(3) read with Section 147 are in nullity and, therefore, are liable to be quashed. Learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax Another v. Hotel Blue Moon [(2010) 3 SCC 259 : 321 ITR 362]. 6. On the other hand, Sri. Christopher Abraham, learned Standing Counsel for the Income Tax Department, has raised objection with regard to maintainability of these writ petitions. He has stated that once the petitioner has challenged the assessment orders in appeals before the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143(2) of the Act would become immaterial and the assessment order issued in such cases cannot be said to be in violation of the statutory provisions. 10. I have considered the submissions of both sides and perused the writ petitions/records. 11. The first question which falls for consideration is whether these writ petitions are maintainable. From the facts of the present case, it appears that the petitioner had filed appeals before the CIT(A) against the impugned assessment orders and also filed writ petitions against the same, as mentioned above. Later on the petitioner withdrew those writ petitions on the ground of curing technical defects . This Court had permitted only to cure the technical defects, if any, and to file writ petitions afresh. However, this Court had not granted any liberty to the petitioner to withdraw the appeals filed before the CIT(A). I am of the view that withdrawal of the appeals by the petitioner filed before the CIT(A) against the assessment orders, was not because of the liberty granted by this Court, but on his own volition. The petitioner could have challenged the assessment orders on merits, but it wanted to advantage of some technical is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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