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TMI Blog2007 (3) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice is mandatory and in absence of issuance and service of such notice, the assessment order cannot be held to be valid. Since in the instant case it is virtually admitted by the Revenue that no notice u/s 143(2) has been issued and served upon the assessee, the block assessment made u/s 158-BC cannot be upheld and the same is to be declared null and void. We order accordingly. Thus, we are not required to dispose of the other grounds taken by the assessee in its appeal - In the result, assessee's appeal stands allowed. - P. N. Parashar (Judicial Member) and Deepak R. Shah ( Accountant Member ) For the Petitioner : S. K. Garg, Sanjay Kumar For the Respondent : Rajnish Kumar (CIT-DR) ORDER P. N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial on record to show that any notice was issued to the assessee u/s 143(2). 5. In support of ground no. 2, the contention of the learned counsel for the assessee was that issuance and service of notice u/s 143(2) was a mandatory requirement for passing block assessment order u/s 158BC. In support of this submission the learned counsel placed reliance on the ratio of decision of Hon'ble Gauhati High court in the case of Smt. Bandana Gogoi vs. CIT and Another (2007) 289 ITR 28. 6. In rejoinder, the learned CIT DR placed reliance on the order of Special Bench of the ITAT in the case of Naval Kishore 87 ITR 407 and submitted that reasons assigned by the Special Bench should be considered while deciding the issue. 7. The learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlled by them. It was in order to be fair to all the concerned persons that a consolidated questionnaire referring to all the seized material was issued to all the persons jointly. 9. On going through the above portion of the remand report of the AO it is clear that he has justified the validity of the assessment order even in absence of notice issued u/s 143(2). He has not mentioned that notice u/s 143(2) was issued and served upon the assessee. 10. In view of the above facts, it is clear that the department has not been able to establish that any notice u/s 143(2) was issued and served upon the assessee during the course of assessment proceedings u/s 158BC. As held in the case of Smt. Bandana Gogoi vs. CIT and Another (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn is furnished or within six months from the end of the month in which the return is furnished, whichever is later. The circular further provides that the Assessing Officer must serve notice under sub-section (2) on the assessee within this period if a case is picked up for scrutiny. It is further clarified that if a notice is not served under section 143(2), the assessee can take it that the return filed by him has become final and no scrutiny proceedings are to be started in respect of that return. The clarification given by the Board has a binding effect on the Department. Hence in the case of block assessment under Chapter XIV-B, where the Assessing Officer does not proceed to make assessment and determine the tax payable on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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