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TMI Blog2013 (12) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 declaring 'nil' income. As noted in the assessment order by the Assessing Officer, since the return was not filed within the due date prescribed u/s 139(1) and even the extended period provided u/s 139(4) of the Act, the return was treated as non est. The Assessing Officer initiated action u/s 147 of the Act by issuing a notice u/s 148 of the Act on 21-3-2006 which was served on the authorised representative of the assessee Sri K.V. Chalamaiah on 15-9-2006. Information received as a result of survey operation conducted u/s 133A in July, 2005 at Ramtekh, Maharashtra disclosed that the assessee society had collected Rs. 27,78,000 as donation which has not been reflected in the books of accounts. The Assessing Officer in the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by the assessee. After considering the submissions of the assessee in the context of the comments in the remand report, the CIT (A) proceeded to dispose of the appeal vide order dated 28-2-2011. So far as the assessee's contention with regard to the validity of reopening of assessment, the CIT (A) upheld the action of the Assessing Officer so far as the reopening of the assessment is concerned by negating the contentions raised by the assessee. However, so far as the other contention of the assessee challenging the validity of the order passed u/s 143(3) read with section 147 of the Act due to non issuance of notice u/s 143(2) of the Act, the CIT (A) accepted such contention and held that the assessment order passed without issui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on issue of the notice is not a procedural irregularity and cannot be cured. Thus, the re-computation of income by the A.O. has to be held invalid and thus, the action of the A.O. in this regard is treated as dismissed." Being aggrieved of the aforesaid order passed by the CIT (A), the department is in appeal before us, while the assessee has filed a cross objection challenging that part of the order of the CIT (A) wherein he upheld the validity of service of notice u/s 148 of the Act. We will first take up the appeal of the department. 4. The only issue arising out of the grounds raised by the department is whether the CIT (A) was justified in annulling the assessment completed u/s 143(3) read with section 147 of the Act on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639 submitted that the CIT (A) was wrong in cancelling the assessment for the reason that no notice u/s 143(2) was served within 12 months. He submitted that while doing so, the CIT (A) also lost sight of the fact that there was no return of income filed in response to the notice, hence there cannot any requirement of issuing notice u/s 143(2) of the Act. The learned Departmental Representative also relied upon the decision Kerala High Court in case of K.J. Thomas v. CIT [2008] 301 ITR 301. 6. The learned authorised representative for the assessee has also filed written submissions before us. The contention of the learned authorised representative for the assessee with regard to afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties and perused the material on record. We have also gone through the orders of the revenue authorities. We have also carefully applied our mind to the decisions relied upon by the parties. Undisputed fact is that the assessment order in case of the assessee for the impugned assessment year was passed u/s 143(3) read with section 147 of the Act. Section 143(2) of the Act mandates that for an assessment to be made u/s 143(3) of the Act, a notice u/s 143(2) of the Act is required to be issued to the assessee within the period of 12 months specifying the particulars of any claim of loss, deduction, allowance or relief which the Assessing Officer has reason to believe to be inadmissible and requiring the assessee to appear before him o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute requires an act to be done in a particular manner, then it has to be done in that manner only. The Assessing Officer having proceeded to make an assessment u/s 143(3) read with section 147 of the Act, notice u/s 143(2) should have been issued to the assessee before completing the assessment. The Assessing Officer having not issued any notice u/s 143(2) of the Act, the assessment order is bad in law. In fact, the Assessing Officer himself in the remand report has admitted this fact and has stated that at least one notice u/s 143(2) and u/s 142(1) of the Act was required to be issued to the assessee before completing the assessment u/s 143(3) read with section 147 of the Act. 8. So far as the decisions relied upon by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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