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TMI Blog2019 (12) TMI 1688X X X X Extracts X X X X X X X X Extracts X X X X ..... (10) TMI 218 - BOMBAY HIGH COURT] has held that where no notice under section 143(2) has been issued while making assessment u/s 143(3) r/w section 147, the assessment so framed is bad in law as the AO can not proceed to make an enquiry on the return filed in compliance to the notice issued under section 148 of the Act and thus dismissed the appeal of the Revenue by holding that no substantial question of law arose out of the appeal of the Revenue. Similarly, in the case of CIT vs. Laxman Das Khandelwal [ 2019 (8) TMI 660 - SUPREME COURT] the Hon ble Apex Court has held that no notice under section 143(2) was ever issued by the Department, therefore, the finding rendered by High Court and the Tribunal and the conclusion arrived at were corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction for depreciation of Rs. 10,500,000/-. The assessee has also raised additional grounds which are as under:- 4. On the facts and in the circumstances of the case and in law, the reassessment order passed under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (Act) dated 31 December 2009 is bad in law and void ab initio since statutory notice under Section 143(2) of the Act was not issued/served upon the Appellant. 3. We would like to adjudicate first the legal issue raised by the assessee by way of additional ground vide letter dated 08.12.2017. As is apparent from the above, the legal issue relates to non issuance and non service of statutory notice under section 143(2) of the Act and consequently the assessee has challenged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see by submitting that the said ground was never raised before the authorities below or in the memorandum of appeal filed before the ITAT and therefore the same may kindly be dismissed. 6. After hearing both the parties and perusing the material on record, we observe that the legal issue raised is in respect of non issuance and non service of notice under section 143(2) of the Act is purely a jurisdictional and legal issue and goes to the root of the matter and therefore, we are inclined to admit the same for adjudication. The case of the assessee is also supported by the ratio laid down by the Hon ble Supreme Court in the case of Jute Corporation of India vs. CIT (supra), National Power Thermal Corporation Ltd. vs. CIT (supra) and CIT vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd.: [2013] 32 taxmann.com 162 (Bombay) 4. PCIT v. Silver Line: [2016] 65 taxmann.com 137 (Delhi) 5. Ajaysingh Gajanansingh Gour v. ITO: ITA No.398/Nag./2017 (NagpurTrib) 8. The Ld. A.R., therefore prayed before the Bench that the assessment so framed by the AO under section 143 read with section 147 dated 31.12.2009 be quashed as invalid and without jurisdiction as the same suffers from the incurable defects of non issuance and non service of notice under section 143(2) of the Act. 9. The Ld. D.R. submitted before the Bench that on 10.01.2019 the revenue was directed by the Bench to ensure the presence of AO with the assessment records so that the fact could be ascertained from the record whether the notice under section 143(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned on several occasions. The Ld. D.R. on 25.09.19 informed the Bench that though the assessment records were not available with the AO and therefore the same could not be produced, however, the Ld. D.R. submitted that the fact is mentioned in the assessment order itself that notice under section 143(2) dated 06.07.2007 was served upon the assessee on 06.07.2007. Since the revenue has failed to produce the assessment records despite granting several opportunities , we are left with no alternative but to take an adverse inference against the revenue that no notice was ever issued or served upon the assessee. In this background of the case, we are of the considered view that assessment so framed by the AO without issuing notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order as well as impugned order stand quashed and thus dismissed the appeal of the Revenue. 11. After taking into consideration the facts of the case vis- vis the ratio laid down by the Hon ble Supreme Court and various High Courts, we are of the considered view that the assessment proceedings and the consequent reassessment order dated 31.12.2009 passed under section 143(3) read with section 147 are bad in law as the mandatory notices under section 143(2) was not issued. Accordingly, we quash the proceedings initiated by the AO under section 147 and also the consequent reassessment order. The additional ground is allowed. Since we have decided the additional ground in favour of the assessee other grounds need no adjudication. Resultantl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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