2013 (4) TMI 763 - AT - Income Tax

Summary

Issues involved:
The judgment involves the issue of non-issuance of notice under Section 143(2) of the Income Tax Act, 1961 before finalizing the assessment, and whether such omission renders the assessment order invalid.

Issue 1: Non-issuance of Notice u/s 143(2):
The appeal challenged the assessment order for not issuing a notice under Section 143(2) of the Act before finalization. The Assessing Officer based the assessment on deposits in the assessee's bank account, determining the income from undisclosed sources. The CIT(A) noted that the authorized representative waived the right to notice under Section 143(2), considering it as deemed service. The assessee argued that non-issuance of this notice is a non-curable defect, citing legal precedents. The Revenue contended that the absence of the notice was not fatal due to the assessee's representation.

Issue 1 Details:
The Assessing Officer's failure to issue notice under Section 143(2) was central to the appeal. The CIT(A) considered the waiver by the authorized representative as valid service of notice. The assessee argued that this omission is a jurisdictional requirement and cannot be waived. Legal precedents were cited to support the contention that a condition precedent, like the notice under Section 143(2), cannot be waived. The Revenue's stance was that the waiver by the authorized representative validated the assessment despite the absence of the notice.

Decision:
The Tribunal held that the omission to issue notice under Section 143(2) rendered the assessment order invalid. Citing legal principles, it emphasized that a jurisdictional requirement like the notice under Section 143(2) cannot be waived. Consequently, the assessment order was quashed, and the appeal of the assessee was allowed. The merits of the addition were not adjudicated due to the invalidity of the assessment order.