TMI Blog2017 (1) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... vice of notice u/s. 143(2) within the prescribed time. 3. That Ld. CIT(A) has not appreciated that notice u/s. 143(2) of Income Tax Act, 1961 dated 27.6.2007 issued by the ITO was served upon some unknown person/ unrelated person and not upon the assessee. Hence, the orders of the ITO are liable to be quashed on this ground alone. 4. That Ld Commissioner OfIncome Tax (Appeals). XXV Has Not Appreciated That Ld Income Tax Officer Was Not Justified In Deciding The Case Exparte On 29-12-2008. As No Notice For Fixing The Case For 29-12-2008 Was Issued Or Served Upon The Appellant. 5. That Ld Commissioner OfIncome Tax (Appeals) XXV Has Not Appreciated That Ld Income Tax Officer Was Not Justified In Determining The Sale Amounting ₹ 7,00,000/- . . 6. That Ld Commissioner Of Income Tax (Appeals) XXV Has Not Appreciated That Ld Income Tax Officer Has Wrongly 1 Arbitrarily Determined The Said Sale, Which Is Without Any Basis And Without Any Reasonable Material Available On Record. 7. That Ld Commissioner Of Income Tax (Appeals) XXV Has Not Appreciated That All The Additions Made By The A.O. Are Bad In Law, Illegal And Against The Principal Of Natural Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice u/s. 143(2) of the I.T. Act within the prescribed time; served the notice dated 27.6.2007 to some unknown person/ unrelated person and decided the exparte on 29.12.2008 as no notice for fixing the case for 29.12.2008 was issued and exparte assessment order has been passed. He submitted that the assessee has filed his written submissions on this issue before the Ld. First Appellate Authority but he has also rejected the request of the assessee in routine manner. Finding of the Ld. CIT(A) is contrary to the law and the facts and circumstances of the present case as well as the decision of the Hon ble Supreme Court of India in the case of ACIT Anr. Vs. Hotel Blue Moon [2010] 321 ITR 362 (SC) wherein the Hon ble Supreme Court has held that the issue of notice u/s. 143(2) of the I.T. Act is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid. He further submitted that the Ld. CIT(A) has ignored the order of the Hon ble Supreme Court of India (Supra) and passed the impugned order which is contrary to law and facts on file and deserve to be cancelled. 5.1 Ld. Counsel of the assessee further stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son/ unrelated person and decided the exparte on 29.12.2008 as no notice for fixing the case for 29.12.2008 was issued and exparte assessment order has been passed. I am of the view that the AO has not issued notice u/s. 143(2) of the I.T. Act which is mandatory 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 I.T. Act. If the notice is not issued to the assessee, then the assessment is not sustainable in the eyes of law and deserve to be cancelled. In view of above facts circumstances of the present case, the issue in dispute raised in ground no. 2 to 4 relating to non service of the mandatory notice u/s. 143(2) of the Act is decided in favor of the assessee by declaring the assessment order dated 29.12.2008 passed u/s. 144 of the I.T. Act as invalid. My view is supported by the various judgment of the Hon ble Supreme Court, Hon ble Jurisdictional High Court, other High Courts and Special Benches decision of the ITAT. The relevant portion of the various judgments of the Hon ble Courts are reproduced as under:- ACIT Anr. vs. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)] HELD: It is mandatory for the AO to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion fixed under the law, then such notice shall be deemed to have been issued within time. It has been further held that resort cannot be taken by the Revenue to section 292BH to give a go-bye to mandatory requirement of issuance of notice within the statutory fixed by the proviso to section I43(2) of the Act. CIT vs Rajeev Sharma 336 ITR 678, High court of Allahabad. In view of above submissions and case laws, it has been established that no notice u/s 143(2) was issued in the present case and therefore the impugned assessment is liable to be annulled. M/s Sapthagiri Finance and Investments vs. ITO: TC(A). No. 159 of 2006 dated 17.07.2012 (Mad HC) [(2013) 90 DTR (Mad) 289] Relevant para reproduced here under: 13. As far as the present case is concerned, the provisions of Section 148 also uses the expression so far as may be apply accordingly as if such return were a return required to be furnished under Section 139 . Thus, understanding this provisions in the background of the decision of the Apex Court, on the facts available, we are of the view that in completing the assessment under Section 148 of the Act, complia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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