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2015 (8) TMI 416 - AT - Income TaxValidity of assessment - non serving with mandatory notice u/s 143(2) - CIT(A) held that as considering the difficulties of tax administration by the department and distribution of jurisdiction of the cases to salaries ITO, it is not possible to monitor service of notice 142(1)/143(2) on each case exclusively, thus non service of notice 143(2) is dismissed - Held that:- If what is concluded by the Ld. CIT(A) is correct then there is no legal mandate for the Revenue to vary the returned income, re-open the concluded assessments etc. It would lay the Revenue open to the unfounded criticism of the tax payers that the fate of the tax payer is open to the arbitrary exercise of power by the tax Department to the detriment of the rights and safety of the tax payer in the face of the perceived authority of the tax department to selectively and mischievously abuse the power under the shelter of the argument that sheer numbers defeat the mandatory exercise. Even if the view expressed is only an opinion based on the personal misreading of the procedure by the Ld. CIT(A) under a mistaken belief that issuance of notice u/s 143(2) is an empty formality inspite of the legal position on this statutory mandate, then it throws a very public glare on the “serious malaise” which the tax administration can be said to be infected with and in such a situation also we are confident that the Competent Authority in the Department would be equally concerned to address the situation and send out correct signals at the earliest point of time. Having expressed our anguished dissatisfaction with the reasoning arrived at in the impugned order, the impugned order is set aside and the issue is restored back to the file of the CIT(A) with the direction to decide the same after giving the assessee a reasonable opportunity of being heard by way of a speaking order in accordance with law. The finding on merits is also set aside as first as per settled legal principles the CIT(A) shall decide the Jurisdictional issue and then proceed to decide the appeal on merits if so warranted on facts. - Decided in favour of assessee for statistical purposes.
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