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TMI Blog2019 (12) TMI 1688X X X X Extracts X X X X X X X X Extracts X X X X ..... i Awunghi Gimson, D.R. ORDER Per Rajesh Kumar, Accountant Member: The above titled cross appeals three by the assessee and one by the Revenue have been preferred against the orders dated 22.11.2011, 11.10.2012 and 21.07.2009 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2004-05. ITA No.920/M/2012 2. The assessee has raised the following grounds of appeal: "1. On the facts, and in the circumstances of the case, and in law, the learned CIT(A) erred in not holding that the notice under Section 148 of the Act was invalid and bad in law. 2. On the facts, and in the circumstances of the case, and in law, the learned CIT(A) erred in upholding the action of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. A.R. stated that though the ground was not raised before the authorities below and is being raised for the first time before this Hon'ble Forum, however, the non raising of ground was neither deliberate nor contumacious but arising out of legal position which has come to the notice of the assessee only recently and therefore the same has been filed immediately before this Hon'ble Forum. In defence of his arguments, the Ld. A.R. relied on the following decisions: 1. Jute Corporation of India vs. CIT 187 ITR 688 (SC) 2. National Power Thermal Corporation Ltd. vs. CIT (1998) 220 ITR 383 (SC) 3. CIT vs. Prithvi Brokers and Shareholder (2012) 349 ITR 336 (Bombay) The Ld. A.R. finally prayed that in view of the ratio laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of statutory notice, the AO can not proceed to compute the income in the reassessment proceedings. The Ld. A.R. submitted that the order passed under section 143(3) read with section 147 of the Act is therefore without jurisdiction and is bad in law as the Revenue has not complied with the mandatory issuance of notice under section 143(2) of the Act. The Ld. A.R. submitted that the said lapse on the part of the AO is not a procedural irregularity and is not curable as the requirement of notice under section 143(2) can not be dispensed with. The Ld. A.R. submitted that the non issuance of notice under section 143(2) goes to the root of the assessment and is not a procedural defect but renders the entire assessment as nullity in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.R. submitted that since the fact stands mentioned in the assessment order therefore it can be reasonably presumed that the said notice was issued and served upon the assessee. The Ld. D.R. again reiterated his inability to produce the assessment record before the Bench and therefore, the Ld. D.R. left the issue to the wisdom of the Bench by placing these facts before the Bench. 10. We have heard the rival submissions of both the parties and perused the material on record including the impugned order. We observe from the facts before us and the rival submissions made before us that there is controversy as to non issuance and non service of notice under section 143(2) of the Act in the reassessment proceedings. In order to verify the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment under section 143(3) read with section 147, the assessment so framed is bad in law as the AO can not proceed to make an enquiry on the return filed in compliance to the notice issued under section 148 of the Act and thus dismissed the appeal of the Revenue by holding that no substantial question of law arose out of the appeal of the Revenue. Similarly, in the case of CIT vs. Laxman Das Khandelwal (2019) 108 taxmann.com 183 (SC) the Hon'ble Apex Court has held that no notice under section 143(2) was ever issued by the Department, therefore, the finding rendered by High Court and the Tribunal and the conclusion arrived at were correct and there is no reason to take a different view in the matter. Pertinent to mention that Hon'ble Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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