TMI Blog2015 (7) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Shri Vijay Mehta ORDER Per G.S. Pannu, AM The captioned appeal by the Revenue and Cross Objection by the assessee are directed against the order of Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A) ] dated 30.11.2010, which inturn has arisen from an order passed by Assessing Officer u/s 143(3) r.w.s 147 of the Income Tax Act, 1961( hereinafter referred to as the Act) dated 30.12.2009 pertaining to assessment year 2005-06. 2. In brief, relevant facts are that the assessee individual is engaged in the business of sale of Vada Pav and Snacks, and he filed a return of income on 01.09.2005, declaring a total income of ₹ 1,72,800/-, which was duly processed u/s 143(1) of the Act. Subsequently, the Assessing Officer noted that the return of income did not contain an amount of ₹ 21,90,750/-, which was admitted by the assessee as additional income for the instant assessment year in the course of a statement recorded at the time of a survey action u/s 133A of the Act on 18.11.2004. In view of the aforesaid reason, the Assessing Officer re-opened the assessment by issuance of notice u/s 148 of the Act on 16.05.2008. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the addition, following the decision of Hon ble Bombay High Court in the case of CIT Vs. Uttam Chand Agarwal in ITA No. 634 of 2009. Against such a decision of the CIT(A), Revenue is in appeal before us. The respondent-assessee has also filed Cross Objection raising the following Grounds:- 1. On the facts and in the circumstances of the case and in law, the learned CIT(Appeals) has erred in dismissing the additional grounds, raised by the assessee during the appellate proceedings challenging the action of the AO to invoke provisions of section 147 by issuing notice u/s 148, by treating the same as not pressed. 2. On the facts and in the circumstances of the case and in law, the learned CIT(Appeals) ought to have held that the order passed by the AO under section 143(3) r.w.s 147 of the I.T. Act, 1961 Act is bad in law and void ab initio. 5. Before us, the Ld. Representative for the assessee has raised a preliminary objection that the assessment pursuant to issuance of notice under section 148 is null and void ab initio, because the mandatory notice u/s 143(2) of the Act was not issued before completion of assessment. He submitted that the impugned notice u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of law, and the relevant facts are on record and following the parity of reasoning laid down by the Hon ble Supreme Court in the case of National Thermal Power Corporation Vs. CIT 229 ITR 383 (SC), the same deserves to be admitted. We are conscious of the fact that the aforesaid ground does not arise from the impugned order of CIT(A) as it was dismissed in-limine as un-admitted by the CIT(A) after noticing that it was not pressed before him. Nevertheless, the issue raised is a point of law, which goes to the root of the matter, and is thus admissible for adjudication, even if it is raised for first time before the Tribunal, following the Judgment of Hon ble Supreme Court in the case of NTPC Ltd. (supra) and that of the Hon ble Bombay High Court in the case of CIT vs. Pruthvi Brokers Shareholders [2012] 349 ITR 336 (Bom). 8. On the basis of the decisions relied upon by the assessee, it clearly emerges that omission to issue notice u/s 143(2) renders an assessment order passed u/s 143(3) r.w.s 147 of the Act bad-in-law and non est. The issuance of notice u/s 143(2) is mandatory and a condition precedent before embarking upon the assessment. Mere issuance of notice u/s 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has also taken into consideration the judgment of the Apex Court and relying on the said judgments, the ITAT has held that notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under section 148. 6. Under these circumstances, no case is made out for interfering with the Tax Appeals No. 77/2012 and 78/2012 since no substantial question of law is raised in both the appeals. 9. In the background of the above legal position, the Revenue was allowed opportunity to prove that any notice u/s 143(2) of the Act was issued while making the impugned assessment under section 143(3) r.w.s 147 of the Act because, the impugned assessment order passed u/s 143(3) r.w.s 147 of the Act does not contain any reference to issuance of notice u/s 143(2) of the Act while making the assessment. The Revenue has not produced any material to prove issuing of notice u/s 143(2) of the Act while making the impugned assessment, in spite of requisite opportunity. In fact, on the last date of hearing of the appeal on 12.06.2015, the following report of the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
