2019 (7) TMI 1055

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....owing order : "Mr. Diniz, learned counsel for the Respondent states that though the Respondent has not filed any cross objection, the Respondent is entitled to challenge the findings of fact rendered by the Income Tax Appellate Tribunal of the State which are against his client. He submits that there is an error in the findings of fact rendered by the ITAT on the issue as to whether a notice under Section 143(2) of the Income Tax Act, 1961 was mandatory or not before passing the order of assessment under Section 143(3) of the Income Tax Act, 1961. He submits that the ITAT has rendered findings against the Respondent based on the order of the Special Bench of ITAT in the case of Nawal Kishore & Sons Jewellers, 87 ITD 407. 2....

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...., as framed in the order dated 1st April, 2019, is answered against the Revenue and in favour of the Assessee, then, there will not be any necessity of adverting to the remaining substantial questions of law which were framed at the stage of admission of the appeal. Accordingly, we proceed to decide on the additional substantial question of law, as recorded in the order dated 1.4.2019. 4. The facts, in brief, are that a search was conducted in the Assessee's premises on 9/3/2000 and 10/3/2000, pursuant to which a notice was issued under Section 158 BC of the Income-tax Act, 1961 (said Act) on 26/3/2000 to the Assessee seeking to assess the undisclosed income by initiating proceedings under the provisions of Chapter XIV-B of the said ....

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....issuance of notice under Section 143(2) of the said Act is a mandatory requirement and not some mere procedural irregularity which can be said to be curable. In this decision, the Apex Court, in clear terms, has held that omission on the part of the assessing authority to issue a notice under Section 143(2) cannot be regarded as a procedural irregularity which is curable. Therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The Hon'ble Apex Court has, in fact, concluded that even for the purpose of Chapter XIV-B of the said Act for determination of the undisclosed income for a block period under Section 158BC, provisions of Section 142 and Section 143(2), and (3) are applicable and no assessment could be m....