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TMI Blog2019 (10) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... order, without appreciating the facts of the case and the submissions of the appellant. 2. the ld. CIT (A) has grossly erred on facts and n law in upholding the order of the AO u/s 143(3)/147 and in confirming the addition of Rs. 14,64,000/-, overlooking the ground of appeal of the appellant that the AO passed order u/s 143(3)/147 without issuing and serving any notice u/s 143(2) which is a mandatory requirement of law. The order passed u/s 143(3)/147 without issuance and service of notice u/s 143(2) is patently bad in law and deserves to be quashed." In Ground No. 2, the assessee has raised the question of validity of reassessment framed by the AO without issuing and service notice under section 143(2) of the IT Act. 2. The ld. A/R of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 143(2) on 11.02.2017, a copy of the same has been produced during the course of hearing. Thus the ld. D/R has submitted that when a notice was issued under section 143(2) and assessee has participated in the proceedings, then the assessee cannot raise this objection at this stage. He has referred to the provisions of section 292BB of the IT Act. 4. I have considered the rival submissions as well as the relevant material on record. The assessee has raised this objection even before the ld. CIT (A) as ground no. 4 reproduced at page 2 of the ld. CIT (A)'s order. However, the ld.CIT (A) has not adjudicated ground no. 4 separately but the entire matter was decided on the merits in para 5.3 and 5.4 as under :- " 5.3. I have pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to the extent of Rs. 14,64,000/- is sustained and the appellant's ground of appeal on the issue is partly allowed." Thus it is clear that despite being specifically raised this ground and taken up for adjudication by the ld. CIT (A), it is not dealt with by the ld. CIT (A). Since this is a legal issue and goes to the root of the matter, therefore, the same is taken up for adjudication. 5. The AO in the reassessment order has accepted this fact that the assessee has filed the return of income on 08.12.2017 vide acknowledgement no. 328210000081217 as given in the assessment order. The fact of filing the return of income is not in dispute. The reassessment order is also framed on the return of income filed by the assessee. The AO ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings that too subsequent proceedings clearly reveals this fact. Accordingly, it becomes manifest and clear that the reassessment was completed without issuing the mandatory notice under section 143(2) of the IT Act and consequently the assessment was framed without assuming the jurisdiction as conferred by section 143(2). An identical issue has been considered by this Tribunal in case of ITO vs. Shri Hans Raj Sharma (supra) in para 14 to 16 as under :- "14. We have considered the rival contentions and found from the record that the assessee filed its return of income in response to the notice u/s 148 of the Act on 13.03.2015. The AO had concluded the assessment without issuing notice under section 143(2) of the Act after the return was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/2017, 19/09/2018 and 15/11/2018 to substantiate the issue and service of notice U/s 143(2) of the Act, but the same could not be produced even on the specific query by the bench. Without issue of notice U/s 143(2) completing the reassessment proceedings are liable to be quashed in view of the following judicial pronouncements: (i) ACIT v/s Hotel Blue Moon 321 ITR 362 (SC) wherein it was held by the Hon'ble SC that issuance of notice u/s 143(2) is mandatory even in block assessments. (ii) CIT v/s Salarpur Cold Storage 50 taxmann.com 105 (All. HC): For framing order u/ s 143(3) it is necessary to issue a notice u/ s 143(2) of the Act, and in absence of notice u/s 143(2) the assumption of jurisdiction itself would be invalid. (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of reassessment. 16. Applying the proposition of law laid down in the above judicial pronouncements, we do not find any merit in the assessment so framed U/s 143(3) without issue of notice U/s 143(2) of the Act." In view of the above facts and circumstances of the case and following the earlier decision of this Tribunal, the reassessment framed by the AO without issuing notice under section 143(2) is bad in law and same is quashed. 6. Since the reassessment is quashed for want of notice issued under section 143(2) of the IT Act, therefore, the other ground raised by the assessee becomes infructuous and not taken up for adjudication. 7. In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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