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TMI Blog2017 (4) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... application money. 4. That the Ld. CIT(A) erred in law and on facts of the case in deleting the addition of Rs. 5,87,607/- made on account f current liabilities. 5(a). The order of the CIT(A) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal. 3. The grounds raised in the Assessee's Cross Objection read as under:- 1. That having regard to the facts and circumstances of the case Ld. CIT(A) has erred in law and on facts in not quashing the impugned assessment order on the ground that the same was passed without assuming jurisdiction as per law and without serving the mandatory notice u/s. 143(2) of the Income Tax Act, 1961. 2. That in any case and in any view of the matter, action of ld. CIT(A) in confirming the action of AO in framing the assessment order that too without serving the mandatory notice u/s. 143(2) is bad in law and against the facts and circumstances of the case and Ld. CIT(A) ought to have quashed the assessment on this ground itself. 3. That the cross objector craves the leave to add, amend, modify, delete any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed by the assessee has involved the legal issue and therefore, the same may be first decided. Hence, we first deal with the Assessee's Cross Objection and adjudicate upon the legal issue. 8. At the time of hearing Ld. Counsel of the assessee argued only on the issue involved in ground nos. 1 to 2 relating assuming jurisdiction as per law and without serving the mandatory notice u/s. 143(2) of the I.T. Act, 1961 and exparte assessment order has been passed. He submitted that the assessee has filed his written submissions on this issue before the Ld. First Appellate Authority but he has also rejected the request of the assessee in routine manner. He filed the copy of small Paper Book before us containing pages 1 to 14 having the copy of acknowledgement on return alongwith statement of total income of assessee; copy of payment receipt for Form No. 18 dated 20.5.2008; Copy of Bill dated 20.5.2008 raised by M/s S. Chandak & Co. for consultation and ROC fees paid for Form No. 18; Copy of payment receipt for Form No. 32 dated 20.5.2008; Copy of Bill dated 20.5.2008 raised by M/s S. Chandak & Co. for consultation and ROC fees paid for From No. 18; Copy of challan dated 25.2.2009 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se supplied by the AO. We find that these documents shows that assessee filed the return from the address i.e. 41, LIG flats, Pocket-3, Dwarka, New Delhi on 30.10.2007; letter dated 18.11.2010 relating to copies of list of the documents requested from Department's file after inspection alongwith fee paid for the same mentioning the address of the assesse at 305, Agarwal Arcade, Plot No. 6, Sector-12, Dwarka, New Delhi - 110 078 addressed to the ITO Ward 15(3), New Delhi; From the order sheet recorded during assessment proceedings filed at page no. 13 of the Paper Book shows that "15.9.2008 - Notice u/s. 142(1) issued." However, the AO as well as Ld. CIT(A) in their respective orders mentioned that the Notice u/s. 143(2) was issued on 15.9.2008 which is contrary to the order sheet recorded by the AO. As per the order sheet, no notice u/s. 143(2) of the Act dated 15.9.2008 was never issued to the assessee and only notice u/s. 142(1) was issued. The copy of PAN database supplied by the AO attached at page no. 14 of the Paper Book shows that the Assessee residential address is "C/o SMS and Associates, 16/100 Vikram Vihar, Lajpat Nagar-IV, New Delhi and Official address is 42, J and K B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OMMUNICATIONS in ITA 441 OF 2010 (Delhi High Court) [(2010) 323 ITR 249] "The notice u/s 143(2) was issued on 23-03-2000 while the return was filed on 27-03-2000. Even if it was issued on 27-03-2000 without examining the return, it was invalid. The notice was invalid and so was the assessment." DCIT vs. Indian Syntans Investments (P) Ltd. [(2007) 107 ITD 457 (Chennai)] Validity of reassessment order - Non-service of notice under s.143(2) - "The amended Proviso to s.148 of the Income Tax Act 1961 was not applicable in case where the assessee was not served a notice under s.143(2) of the Act. The reassessment made in such a case was invalid S.143(2) and s.148 of the Income Tax Act 1961." CIT vs. M/s Panorama Builders Pvt. Ltd. in Tax Appeal no. 435 of 2011 of Hon'ble Gujarat High Court Issue Involved: "Whether non-issuance of the notice u/s 143(2) within the prescribed time, made the whole block assessment order null and void and bad in law, despite the assessee not having raised any objection before the passing of the assessment order and despite the provisions of section 292BB of the Act? " Held: "In this case, Hon'ble High Court has held that section 292BB cure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory and is not an inconsequential procedural requirement. Omission to issue notice u/s 143 (2) is not curable and the requirement cannot be dispensed with. S. 143(2) is applicable to proceedings u/s 147 & 148." JYOTI PAT RAM VS. ITO [(2005) 92 ITD 423 (Lucknow) - ShreeJai Shiv Shonhor Traders (P) Ltd. - A.Y. - 2008-09 "Reassessment order passed under section 143(3)/148 without issue of a valid notice under section 143(2) was illegal." CIT vs. Pawan Gupta & Ors. [(2009) 318 ITR 322 (Del) Hon'ble Delhi High Court held in Para 38 of the order observed as under:- "Thus, we are of the clear view that where the assessing officer is not inclined to accept the return of undisclosed assessment filed by the assessee issuance of a notice under section 143(2) is a prerequisite for framing the block assessment order under chapter XlV B of the Income Tax Act, 1961. We are also of the view that if an assessment order is passed in such a situation without complying with section 143(2), it would be invalid and not be merely irregular." RAJ KUMAR CHA WLA AND ORS. VS. ITO - (2005) 94 ITD 1 (Del)(SB) Limitation for re-assessment- Service of notice u/s143(2) in time - A.Y.1995-96. "I ..... 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