TMI Blog2014 (3) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143 (2) of the Income Tax Act to the assessee – thus, the order passed by the Tribunal is set aside – Decided in favour of Assessee. - ITA. No. 15 of 2014 - - - Dated:- 6-3-2014 - CJ Dr. Manjula Chellur And A. M. Shaffique,JJ. For the Petitioner : Sri. T. M. Sreedharan, Senior Advocate For the Respondent : Sri. Jose Joseph, S.C, I.T. JUDGMENT Shaffique, J. This appeal is filed by the assessee challenging the order passed by the Income-tax Appellatre Tribunal, Cochin Bench in IT(S S)A No. 13/Coch/96. The assessment relates to the block period from 1.4.1985 to 15.9.1995. 2. The facts involved in the case would disclose that the assessee was assessed to income tax for the block period from 1.4.1985 to 15.9.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial questions of law: (i) Whether, on the facts and in the circumstances of the case, did not the Appellate Tribunal err in law in not setting aside the assessment order Annexure-A for the block period 1.4.1985 to 15.9.1995 on the ground of violation of mandatory requirement of Sec. 143(2) of the Income Tax Act, 1961? ii. Should not the Appellate Tribunal have held that the block assessment order Annexure-A is invalid in the absence of any undisclosed income of the appellant evidenced by seized material? (iii) Did not the Appellate Tribunal err in law in partially sustaining the estimate of undisclosed income when the entire assessment is illegal and invalid? (iv) Is not the order of the Appellate Tribunal Annexure-C arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of law that it is the responsibility of the person making allegations to prove the same with credible evidence. In the instant case, the assessee has failed to prove the allegation with any material. Under these circumstances, we do not find any justification in admitting this legal ground at this stage and accordingly dismiss the same in limine. 8. But, apparently, on the basis of Annexure-D, it is not open for the Department to contend that notice was issued under Section 143(2). The Tribunal has proceeded on the basis that notice would have been issued especially since the matter was being considered after 18 years and it would have been misplaced. This finding of the Tribunal is now found to be incorrect on the basis of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the appellant, it is not in dispute that in order to make assessment under Section 143(3) read with Section 158 BC, notice should be issued under Section 143(2) and omission to issue such a notice is not a procedural irregularity and is not curable. The judgment relied upon is Assistant Commissioner of Income-tax another v. Hotel Blue Moon, (2010) 321 ITR 362. Having regard to the law laid down by the Supreme Court in the above judgment and having regard to the fact that it is now admitted by the Department that no notice was issued under Section 143 (2) of the Income Tax Act to the assessee, we are inclined to set aside the orders passed by the Tribunal as well as the Assessing Officer and accordingly, this appeal is allowed answ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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