TMI Blog2008 (1) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, this appeal is being disposed of by this order. The facts of the case are that the AO issued notice of hearing dt. 11th Oct., 2004 under s. 143 (2) in the name of Shri Karamshibhai M. Thumar. During the course of hearing the assessee objected to the issue of notice in the name of Shri Karamshibhai M. Thumar individual and not in the name of Shri Karamshibhai M. Thumar (HUF). It was submitted that without issue of proper notice under s. 143(2) for proceeding pursuant to such notice was bad in law. The AO observed that the CBDT has issued Instruction Nos. 9-10 of 2004, dt. 20th Sept., 2004 prescribing specific categories of cases to be taken up for scrutiny. As per para 2(j), the cases where exempt income above ₹ 2 lacs was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The learned Authorised Representative of the assessee submitted that since the notice under s. 143(2) was not a proper notice issued in the name of the HUF, therefore, the order passed pursuant to the said notice was bad in law and hence, should be cancelled. The learned Departmental Representative on the other hand supported the orders of the lower authorities. He further relied on the decision of the Hon ble Madras High Court in the case of Areva T D India Ltd. vs. Asstt. CIT (2007) 207 CTR (Mad) 497 : (2007) 294 ITR 233 (Mad) where it was held that not issuing notice under s. 143(2) of the Act before completing the assessment was only an irregularity committed by the AO and restored the matter back to the file of the AO to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. On the other hand the assessee relied on the Third Member decision of the Delhi Bench of the Tribunal in the case of Suraj Mal (HUF) (supra), wherein the notice was issued in the name of the assessee as individual and not in the name of the assessee as HUF and the Tribunal held that assessment was without jurisdiction and cannot be sustained in law. We find that the Hon ble Gauhati High Court in the case of Smt. Bandana Gogoi vs. CIT Anr. (2007) 209 CTR (Gau) 31 : (2007) 289 ITR 28 (Gau) held that in a case where the AO decides to undertake scrutiny of the return filed in pursuance of a notice issued under s. 158BC(a), he has to follow the rigors of sub-ss. (2) and (3) of s. 143; assessment without notice under s. 143(2) suffer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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