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TMI Blog2014 (11) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... re, in all cases absolute and neglect to attend to such requirement will invalidate the whole proceeding – also in Asst. CIT v. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA] it has been held that the AO has to necessarily follow the provisions of section 142 and sub-sections (2) and (3) of section 143 - both the CIT(A) and the Tribunal have held that the procedure prescribed of issuance of notice u/s 143(2) has not been followed at all - This realm of fact has not been disputed by the Revenue - the assumption of the jurisdiction of issuance of notice of reopening itself would not be sustainable - in the absence of fulfilment of mandatory requirement of issuance of notice u/s 143(2) both the authorities rightly and validly held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the belief that the assessee had not offered for the purposes of tax receipt of sale price on sale of shares and, hence, the capital gains received from the sale of the shares escaped the assessment. Therefore, the notice of reopening under section 148 of the Act was issued. In response to the said notice, the assessee had asked his return originally filed to be treated as return in response to the notice under section 148 of the Act. The Assessing Officer finalised the assessment under section 143(3) read with section 147 of the Act making certain additions. 5. This was challenged before the Commissioner of Income-tax (Appeals) on the ground that the notice under section 143(2) had not been issued and the only notice served was under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of notice under section 142(1), in substance the notice under section 143(2) was issued. We notice that this court in the case of Deputy CIT v. Mahi Valley Hotels and Resorts reported in [2006] 287 ITR 360 (Guj) considered this question at length and held such requirement absolute in all cases. Holding further that any neglect to attend such requirement would invalidate the whole proceedings (page 362) : 5. The scheme of the Act broadly permits the assessment in three formats ; (i) acceptance of the returned income ; (ii) acceptance of returned income subject to permissible adjustments under section 143(1) of the Act by issuance of intimation ; and (iii) scrutiny assessment under section 143(3) of the Act. This scheme wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute enacts that it shall be done in such a manner and in no other manner, such requirements are, in all cases absolute and neglect to attend to such requirement will invalidate the whole proceeding. 7. Question in the present form has been answered by this court in the case of Deputy CIT v. Mahi Valley Hotels and Resorts (supra). However, without attaching the question of limitation which again by the Finance Act, 2008, has been reduced to six months. The issue is no longer res integra. 8. The apex court in the case of Asst. CIT v. Hotel Blue Moon reported in [2010] 321 ITR 362 (SC) has considered the very issue. The apex court held that the Assessing Officer has to necessarily follow the provisions of section 142 and sub-sections ..... X X X X Extracts X X X X X X X X Extracts X X X X
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