TaxTMI 
TaxTMI 
2017 (1) TMI 624
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.... Deciding The Case Exparte On 29-12-2008. As No Notice For Fixing The Case For 29-12-2008 Was Issued Or Served Upon The Appellant. 5. That Ld Commissioner OfIncome Tax (Appeals) XXV Has Not Appreciated That Ld Income Tax Officer Was Not Justified In Determining The Sale Amounting Rs. 7,00,000/- . . 6. That Ld Commissioner Of Income Tax (Appeals) XXV Has Not Appreciated That Ld Income Tax Officer Has Wrongly 1 Arbitrarily Determined The Said Sale, Which Is Without Any Basis And Without Any Reasonable Material Available On Record. 7. That Ld Commissioner Of Income Tax (Appeals) XXV Has Not Appreciated That All The Additions Made By The A.O. Are Bad In Law, Illegal And Against The Principal Of Natural Justice. 8. That Appellant Craves Leave To Add, Alter, Omit To /From The Grounds Of Appeal At The Time Of Hearing. Prayer: - In View Of The Above Mentioned Circumstances It Is Most Respect Fully Prayed That Please Quashed The Orders Of A.O./ Ld Commissioner Of Income Tax (Appeals) XXV Or Alternatively Addition Of Rs. 77600.- Be Deleted Or May Pass Such Orders As Your Good self Consider Fit And Proper In The Interest Of Natural Justice. 2. The facts in brief are that in this....
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.... and the facts and circumstances of the present case as well as the decision of the Hon'ble Supreme Court of India in the case of ACIT & Anr. Vs. Hotel Blue Moon [2010] 321 ITR 362 (SC) wherein the Hon'ble Supreme Court has held that the issue of notice u/s. 143(2) of the I.T. Act is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid. He further submitted that the Ld. CIT(A) has ignored the order of the Hon'ble Supreme Court of India (Supra) and passed the impugned order which is contrary to law and facts on file and deserve to be cancelled. 5.1 Ld. Counsel of the assessee further stated that there are plethora of judgments passed by the Hon'ble Supreme Court of India; Hon'ble Jurisdictional High Courts and the various Hon'ble High Courts wherein the Hon'ble Courts held that non-service of the notice u/s. 143(2) of the I.T. Act, the assessment made in such cases is invalid. He requested that on this ground the assessment in dispute as well as the impugned order passed by the Ld. CIT(A) may be declared invalid, void abnitio. In support of his contention Ld counsel of the assessee cited following relevant judgment:....
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.... facts circumstances of the present case, the issue in dispute raised in ground no. 2 to 4 relating to non service of the mandatory notice u/s. 143(2) of the Act is decided in favor of the assessee by declaring the assessment order dated 29.12.2008 passed u/s. 144 of the I.T. Act as invalid. My view is supported by the various judgment of the Hon'ble Supreme Court, Hon'ble Jurisdictional High Court, other High Courts and Special Benches decision of the ITAT. The relevant portion of the various judgments of the Hon'ble Courts are reproduced as under:- ACIT & Anr. vs. Hotel Blue Moon: [(2010) 321 ITR 362 (SC)] HELD: "It is mandatory for the AO to issue notice u/s 143 (2). The issuance and service of notice u/s 143 (2) is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid Reassessment-----Notice----- Assessee intimating original return be treated as fresh return--- Reassessment proceedings completed despite assessee filing affidavit denying serviced of notice under section 143(2)---- Assessing Officer not representing before Commissioner (Appeals) that notice had been issued---- Reassessment order invalid due to w....
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....006 dated 17.07.2012 (Mad HC) [(2013) 90 DTR (Mad) 289] Relevant para reproduced here under: "13. As far as the present case is concerned, the provisions of Section 148 also uses the expression "so far as may be apply accordingly as if such return were a return required to be furnished under Section 139". Thus, understanding this provisions in the background of the decision of the Apex Court, on the facts available, we are of the view that in completing the assessment under Section 148 of the Act, compliance of the procedure laid down under Sections 142 and 143 (2) is mandatory. On the admitted fact that beyond notice under Section 142(1), there was no notice issued under Section 143(2), and in the light of the fact that the very basis of the reassessment was the failure on the part of the assessee in not disclosing the capital gains arising on the transfer of property for assessment and that admittedly the assessee had requested the officer to accept the original return as a return filed in response to Section 148 of the Act, we hold that there was total failure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is man....