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2015 (4) TMI 764 - AT - Income TaxAdmissibility of additional ground - Non-service of the notice u/s 143(2) for making reassessment u/s 147 - Addition of Income u/s 68 of Income Tax Act, 1961 - Held that:- We have heard both the parties and perused the relevant records especially the order passed by the Revenue Authorities along with the documentary evidence filed by the assessee attaching therewith the various documentary evidence supporting the claim of the assessee as well as the various decisions rendered by the Hon’ble Supreme Court on the legal issue in dispute. Regarding admission of this additional ground before us, which is challenging the very jurisdiction of the AO to pass the reassessment order, is no longer res-integra and it is well settled that an assessee can raise a legal ground at any stage of the proceedings as held by Apex Court in the case of Varas International [2006 (3) TMI 74 - SUPREME Court] and National Thermal Power Co. Ltd. [1996 (12) TMI 7 - SUPREME Court] and the Special Bench decision in the case of DHL operators [2007 (3) TMI 420 - ITAT MUMBAI]. Keeping in view the facts and circumstances of the present case and the arguments raised by the ld. counsel, we are of the view that the issue raised in additional ground regarding the non-issuance of notice u/s. 143(2) of the Act which goes to the root of the matter, needs to be admitted. We are of the view that the AO has not issued notice u/s. 143(2) of the Act which is mandatory. We are also of the view that in completing the assessment u/s. 148 of the Act, compliance of the procedure laid down u/s. 142 and 143(2) is mandatory. As per record, we find that there was no notice issued u/s. 143(2) of the Act which is very much essential for reassessment and it is a failure on the part of the AO for not complying with the procedure laid down in section 143(2) of the Act. If the notice is not issued to the assessee before completion of the assessment, then the reassessment is not sustainable in the eyes of law and deserves to be cancelled. In view of above facts and circumstances of the present case, the issue in dispute raised in additional ground relating to non issue of the mandatory notice u/s. 143(2) of the Act is decided in favour of the assessee and we hold that the impugned assessment order dated 31.12.2009 passed u/s. 147/143(3) of the Act by the AO as invalid. Our view is supported by the various judgments of the Hon’ble Supreme Court, and Hon’ble Jurisdictional High Court. Refer cases are Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA], M/s Silver Line [2014 (10) TMI 141 - ITAT DELHI], Aligarh Auto Centre [2013 (9) TMI 332 - ITAT AGRA]. In the result, the Cross Objection filed by the Assessee is allowed. Since the assessment order is held to be void abnitio, the other grounds raised by the assessee in the Cross Objection have become academic in nature, hence, the same are not being adjudicated upon. - Decided in favour of assessee.
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