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TMI Blog2014 (11) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... g not been satisfied, the department's further proceedings becomes nonest in law – the same is also held in Asst. CIT v. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA] - omission on the part of the assessing authority to issue notice u/s 143(2) cannot be a procedural irregularity and it is not curable and, therefore, the requirement of notice u/s 143(2) cannot be dispensed with – thus, no substantial question of law arises for consideration – Decided against revenue. - T. C. (A). No. 825 of 2013 - - - Dated:- 16-9-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. T. Ravikumar For the Respondent : Mr. V. S. Jayakumar JUDGMENT (Delivered by R. Sudhakar, J.) The Revenue has filed this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sum, ₹ 50,000/- was disallowed, being personal in nature, and the same was added to the total income. Anent the claim of the assessee towards TDS of ₹ 1,36,290/- on labour charges received from Alpump Limited, Perungudi, Chennai of ₹ 60,73,014/-, the Assessing Officer, on verification of the TDS certificates and the records filed, held that the amount received towards labour charges and credited in the profit and loss account is only ₹ 56,99,791/- and, therefore, added the difference of ₹ 3,73,313/- to the total income as undisclosed business income. 2.3. Aggrieved by the said order, the assessee appealed to the Commissioner of Income Tax (Appeals), who confirmed the order passed by the Assessing Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified there-in to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim: Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003; (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not under stated the income or has not computed excessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was raised for the first time before the Tribunal, we find that it is a legal plea which goes to the root of the matter and, therefore, the assessee is entitled to raise such a plea before the Tribunal, which is the ultimate fact finding body. 7. In the case on hand, it is beyond any cavil that the assessee filed return of income on 31.10.2007. Even though the department claims to have sent a notice under Section 143(2) of the Act on 17.9.2008, the Revenue failed to produce any records to show that the said notice was despatched and served on the assessee. However, it is stated that the department subsequently issued another notice under Section 143(2) of the Act on 27.8.2009, which, on the face of it, is beyond the period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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