2020 (10) TMI 988 - AT - Income Tax

Proceedings u/s 143(3) - Non issuance of notice u/s. 143(2) from the competent AO - Unexplained cash credits addition u/s 68 - addition on account of assessee s failure in discharging onus of identity, genuineness and creditworthiness of the share application / premium s investors - HELD THAT - Revenue itself is fair enough in admitting the clinching fact that ITO, Ward 24(3), Kolkata only had issued 143(2) notice dated 07-08-2013 to the assessee without having his jurisdiction since it was the TRO-4, Kolkata who was supposed to frame assessment in the taxpayer s case. The latter authority never issued sec.143(2) notice to the assessee. There can hardly be any dispute that issuance of notice u/s. 143(2) from the competent Assessing Officer is a mandatory condition as per ACIT vs. Hotel Blue Moon 2010 (2) TMI 1 - SUPREME COURT . Assessment in absence of section 143(2) notice issued from the Assessing Officer having jurisdiction is rendered invalid - See D. CRAFT ENTERTAINMENT PVT. LTD. VERSUS INCOME-TAX OFFICER, WD-6 (1) , KOLKATA 2018 (10) TMI 1114 - ITAT KOLKATA . Thus impugned assessment order dated 22-03-2015 had been framed without the competent Assessing Officer s sec. 143(2) notice issued to the assessee. The same is declared invalid for this precise reason. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the assessment order due to the absence of a valid Section 143(2) notice.
2. Jurisdiction of the Assessing Officer in issuing the Section 143(2) notice.
3. Compliance with principles of natural justice.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order Due to the Absence of a Valid Section 143(2) Notice:
The primary issue raised by the assessee in its cross objection was the invalidity of the assessment order due to the lack of a valid Section 143(2) notice. The assessee argued that the assessment itself was invalid as the notice was not issued by the competent Assessing Officer. The tribunal noted that the issuance of a notice under Section 143(2) from the competent Assessing Officer is a mandatory condition as per the precedent set in ACIT vs. Hotel Blue Moon (2010) 321 ITR 362. The tribunal found that the ITO, Ward 24(3), Kolkata, who issued the Section 143(2) notice, did not have the jurisdiction to do so, as the TRO-4, Kolkata was the competent authority supposed to frame the assessment. Therefore, the assessment order dated 22-03-2015 was declared invalid due to the absence of a valid Section 143(2) notice from the competent authority.

2. Jurisdiction of the Assessing Officer in Issuing the Section 143(2) Notice:
The tribunal examined the jurisdictional issue in detail. It was established that the ITO, Ward 24(3), Kolkata issued the Section 143(2) notice on 07-08-2013, but the assessment was framed by TRO-4, Kolkata, who did not issue any Section 143(2) notice. The tribunal emphasized that the issuance of a notice under Section 143(2) by the competent Assessing Officer is crucial for the validity of the assessment. The tribunal referred to the case of D. Craft Entertainment Pvt. Ltd vs. Income Tax Officer, Ward-6(1), Kolkata, which held that an assessment in the absence of a Section 143(2) notice issued by the competent authority is invalid. The tribunal concluded that the assessment order was invalid as the competent authority, TRO-4, Kolkata, did not issue the required notice.

3. Compliance with Principles of Natural Justice:
The tribunal also addressed the issue of compliance with the principles of natural justice. The assessee argued that it was not given an opportunity of hearing by the competent Assessing Officer before framing the assessment under Section 144 of the Act. The tribunal noted that the ITO, Ward-6(1), Kolkata, who framed the assessment, did not issue any notice under Section 143(2) or 142(1) of the Act. The tribunal highlighted that the issuance of a notice under Section 143(2) is a sine qua non before proceeding to scrutinize the assessment. The failure to issue such a notice by the competent authority rendered the assessment order null and void. The tribunal emphasized that the principles of natural justice were not adhered to, further invalidating the assessment order.

Conclusion:
The tribunal concluded that the assessment order dated 22-03-2015 was invalid due to the absence of a valid Section 143(2) notice issued by the competent Assessing Officer. The assessee's cross objection was allowed, and the Revenue's appeal was dismissed. All other pleadings in the appeal and cross objection were rendered academic. The order was pronounced in court on 22-10-2020.