2004 (2) TMI 269 - AT - Income Tax

Summary

Issues:
1. Additional ground of appeal regarding the absence of issuance/service of notice under section 143(2) and the legality of the assessment under section 144 of the Income Tax Act, 1961.

Analysis:
1. ITA No. 6608/Del/1996 (Assessment Year 1989-90):
- The assessee appealed against the CIT(A)'s order for the assessment year 1989-90. The counsel for the assessee requested to add an additional ground related to the absence of notice under section 143(2) before the assessment under section 144.
- The issue arose from the dissolution of a firm in 1987 and subsequent assessment of one of the partners. The AO treated the individual return of one partner as the firm's return, leading to an ex parte assessment under section 144 without issuing a notice under section 143(2).
- The counsel argued that the absence of notice under section 143(2) rendered the assessment invalid. The Tribunal noted the mandatory nature of the notice under section 143(2) and the importance of providing an opportunity to be heard before passing an ex parte order.
- The Tribunal referred to the amended provisions of section 144, which made it mandatory to give the assessee an opportunity of being heard. As the assessment year fell after the amendment, the absence of such an opportunity rendered the assessment illegal and bad in law.
- Consequently, the Tribunal allowed the additional ground of appeal, rendering the assessment order under section 144 illegal and unnecessary to adjudicate other grounds.

2. ITA Nos. 58/Agr/2002 & 131/Agr/1999 (Assessment Years 1990-91 & 1995-96):
- The appeals for these assessment years raised similar issues as in ITA No. 6608/Del/1996. The counsel added an additional ground regarding the absence of notice under section 143(2) before assessments under sections 143(3)/148.
- The facts were analogous to the previous appeal, with assessments made without providing an opportunity of being heard. The Tribunal, following the reasoning in the earlier case, held the assessment orders for these years illegal and bad in law.
- As a result, the Tribunal allowed the additional ground for both assessment years, leading to the allowance of all grounds of appeal and the ultimate allowance of the assessee's appeals for these years.

In conclusion, the Tribunal found in favor of the assessee in all three appeals, emphasizing the mandatory nature of providing an opportunity to be heard before passing ex parte assessment orders under the Income Tax Act, 1961. The absence of such an opportunity rendered the assessment orders illegal and bad in law, leading to the allowance of the additional grounds of appeal and subsequent allowance of all appeals.