TMI Blog2022 (5) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been held by the Hon ble Apex Court that the issue of notice u/s.143(2) of the Act is mandatory and not procedural and if the notice is not served within the prescribed period, then, the assessment order would be invalid. We, thus, in terms of our aforesaid observations are unable to concur with the view taken by the CIT(Appeals) who had upheld the assessment framed by the Assessing Officer u/s.143(3)/148 and accordingly, set aside his order. Thus, the assessment framed by the Assessing Officer u/s.143(3)/148 being devoid and bereft of any force of law is hereby quashed - Decided in favour of assessee. - ITA No. 32/RPR/2018 - - - Dated:- 29-4-2022 - Shri Ravish Sood, Judicial Member And Shri Jamlappa D Battull, Accountant Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, thereafter, issued to the assessee. 3. During the course of the assessment proceedings, it was observed by the Assessing Officer that the assessee had sold the aforesaid property in question for a consideration of Rs.31 lacs on 26.04.2010 which, however, was registered for a sale consideration of Rs.7 lacs only. On a perusal of the records, it was gathered by the Assessing Officer that the assessee had not disclosed Long Term Capital Gain (for short LTCG ) arising from sale of the aforesaid property by filing his return of income for the year under consideration. It was further noticed by the Assessing Officer that the assessee during the year under consideration had paid an amount of Rs.31 lacs in cash to Shri Hari Sahu ,i.e., hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3)/148 of the Act, dated 21.11.2016, inter alia, for the reason that now when he had not filed any return of income i.e. either u/s.139 of the Act or in response to the notice issued u/s.148 of the Act then, no assessment u/s.143(3) of the Act could have been framed in his case. We find that the CIT(Appeals) after considering the aforesaid claim of the assessee, had observed, that though admittedly no notice u/s.143(2) of the Act was issued by the Assessing Officer, however, the latter had duly issued a notice u/s.142(1) of the Act dated 16.09.2016 and called for requisite details/documents vide Sl. No.(s) (i) to (ix) of the said notice. Further, it was observed by the CIT(Appeals) that the Assessing Officer had, thereafter, issued anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO or to produce or cause to be produce before the AO any evidence on which the assessee may rely in support of the return . After the notice u/s.143(2) is issued, order is passed u/s.143(3). In the present case after issue of notice u/s.143(1) as discussed above, the AO has issued another notice dated 04/10/2016 requiring the assessee to attend the office personally or through any authorized representative along with the required information, documentary evidences, bank account etc. on 14/10/2016 at 3.30pm. As can be seen this notice has all the ingredients of a notice u/s.143(2) although the section has not been specifically mentioned. Obviously, this notice has to be viewed as a notice u/s.143(2). Therefore, passing of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the notice(s) u/s.142(1) of the Act, dated 16.09.2016 and 04.10.2016 could be viewed as a notice u/s. 143(2) of the Act. In our considered view, the aforesaid observation of the CIT(Appeals) is not only misconceived in the context of the issue which was raised by the assessee before him, but in fact is absolutely devoid and bereft of any force of law. As observed by us herein above, it was claimed by the assessee that now when he had not filed any return of income with the Assessing Officer then how could an assessment be framed u/s.143(3) of the Act in his case. However, the CIT(Appeals) loosing sight of the issue raised by the assessee before him, had upheld the order passed by the Assessing Officer u/s.143(3)/148 of the Act ..... 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 Act is mandatory and not procedural and if the notice is not served within the prescribed period, then, the assessment order would be invalid. 9. We, thus, in terms of our aforesaid observations are unable to concur with the view taken by the CIT(Appeals) who had upheld the assessment framed by the Assessing Officer u/s.143(3)/148 of the Act, dated 21.11.2016 and accordingly, set aside his order. Thus, the assessment framed by the Assessing Officer u/s.143(3)/148 of the Act, dated 21.11.2016 being devoid and bereft of any force of law is hereby quashed. 10. In the result, appeal of the assessee is allowed in terms of our aforesaid observations. Order pronounced in open court on 29th day of April, 2022. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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