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TMI Blog2020 (4) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... to the present case. The consequene of non-issue of notice u/s. 143(2) of the Act is fatal to the validity of the order passed u/s. 148 of the Act. Since the aforesaid legal infirmity renders the order of assessment null and void, we are of the view that the order of assessment has to be annulled. - Decided in favour of assessee. - ITA No. 2211/Bang/2019 - - - Dated:- 6-2-2020 - Shri N.V. Vasudevan, Vice President And Shri B R Baskaran, Accountant Member For the Appellant : Shri S.V. Ravishankar, Advocate For the Respondent : Smt. K. Haritha, Addl.CIT(DR)(ITAT), Bengaluru. ORDER PER N.V. VASUDEVAN, VICE PRESIDENT This appeal by the assessee is against the order dated 1.8.2019 of the CIT(Appeals)-I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 3.5.2018, the AO issued a notice u/s. 143(2) of the Act in which the assessee was asked to attend the office of AO on 21.5.18. On the very same day i.e., 3.5.2018 the AO also informed the assessee that with reference to notice u/s. 148 issued by the AO, the assessee had not filed any return of income and therefore he would treat the return of income filed by the assessee for AY 2011-12 on 30.9.2011 as a return filed in response to u/s. 148 of the Act and also informed the assessee that he can intimate if he has any objection to the aforesaid proposal latest by 10.5.2018 so as to enable the assessee to continue the proceedings. 4. The AO also informed by the aforesaid letter that based on the original return filed, notice u/s. 143(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ekalavya Tradecom P Ltd. - 23.04.2010 ₹ 10,00,000 23.06.2010 8,00,000/- (Clearing Nataraj) 5. Siva Swathi Constructions Pvt Ltd. 30.11.2010 5,00,000 01.12.2010 Self 5,00,000 Total 65,00,000 5. On appeal by the assessee, the CIT(Appeals) confirmed the order of AO. Aggrieved, the assessee has filed the present appeal before the Tribunal. 6. Before the Tribunal, the assessee has filed serval additional grounds of appeal. We deem it appropriate to deal with first 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment on the ground that after the filing of return of income by the assessee, no notice u/s. 143(2) of the Act was issued by the AO and the assessment framed without issue of notice u/s. 143(2) of the Act is null and void and the order of assessment is liable to be annulled. 8. The assessee has placed reliance on the decision of the Hon ble Supreme Court in the case of NTPC Ltd. v. CIT, 229 ITR 383 (SC) in support of admission of the additional ground. The Hon ble Supreme Court in the aforesaid decision has held that additional grounds not raised before the lower authorities have to be admitted and adjudicated where those grounds involve legal issues which can be decided on facts already on record. We are of the view that in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice u/s. 148 of the Act. The law is well settled that it is only on 10.5.2018 that the return filed by the assessee in response to notice u/s. 148 of the Act can be taken cognizance by the AO. The admitted position is that there was no notice u/s. 143(2) of the Act after 10.5.2018. It is on these factual details that we need to adjudicate the additional grounds No.1 to 5. 10. The ld. counsel for the assessee placed reliance on the decision of the Hon ble Supreme Court in the case of CIT v. Laxmandas Khandelwal [2019] 108 taxmann.com 183 (SC) in which the Hon ble Supreme Court reiterated the legal position as laid down by it in the case of ACIT v. Hotel Blumoon, 321 ITR 362 (SC) that an assessment framed without issue of notice u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said to be one concluded u/s. 144 of the Act. This argument of the ld. DR also cannot be accepted because before proceeding to frame an assessment u/s. 144 of the Act (best judgment assessment), the provisions of section 144(1) contemplates failure of an assessee to comply with the terms of a notice issue u/s. 142(1) or 143(2) of the Act. Admittedly, there was no failure on the part of assessee to comply with the notice u/s. 142(1) of the Act. As far as notice u/s. 143(2) is concerned, no such notice was issued after filing of return by the assessee in the present proceedings which are under challenge. Therefore, there was no basis on which the assessment can be said to be one framed u/s. 144 of the Act. It was not even the case of AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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