TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 40
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....rs any notice u/s. 143(2) of the Income Tax Act, 1961 and without complying to the mandatory tenets of s. 127 of the Act and the impugned inaction on that account renders the assessment order framed ab initio void, ultra vires and null in law." 3. The Ld. Counsel for the assessee submitted that the said ground was not raised before the CIT(A), Jamshedpur due to lack of correct legal advice. However, the ground is purely legal in nature and goes to the root of the matter. The Ld. Counsel further argued that no further verification of facts is required qua the said ground and, therefore, in the interest of natural justice and fair play the same may be adjudicated. 4. After hearing the rival parties and perusing the material available on record, we find that the legal issue raised by the assessee goes to the root of the assessment and all the facts qua the said ground are available before us. Accordingly, we are inclined to admit the same for adjudication in the following paras. 5. The facts in brief are that the assessee filed the return of income on 06.02.2015 with Range-1(1), Jamshedpur declaring total income of Rs. 5,63,220/-. Thereafter, a notice u/s. 143(2) was issued on 31.0....
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....ns and perusing the material available on record, undisputedly, the assessee has filed return of income with Range-1(1), Jamshedpur whereas the notice u/s. 143(2) issued by ITO, Ward-3(1), Jasmshedpur on 31.08.2015 and the assessment was finally framed by ITO, Ward-1(1), Jamshedpur. In our opinion, assessment as framed by ITO, Ward-1(1), Jamshedpur without issuing a mandatory notice u/s. 143(2) is invalid and bad in the eyes of law. The Hon'ble Calcutta High Court in the case of Nopany & Sons (supra) has decided the similar issue in favour of the assessee under identical facts. The Coordinate bench in the case of Jaya Bothra (supra) has also decided the issue in favour of the assessee after following the above said decision of the Hon'ble Calcutta High court. The operative part of the decision of the Coordinate Bench is extracted below: "7. I have heard rival contentions and perused the records placed before me. Through the legal issue raised in the additional ground has been raised for the first time before me, I find that the same being legal in nature can be raised at any stage as held by Hon'ble Supreme Court of India in the case of National Thermal Power Co. Ltd. vs. Commiss....
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....without jurisdiction? 5. We have heard Mr. Mitra, learned senior standing counsel for the appellant and Mr. Ananda Sen, learned counsel assisted by Ms. Atasi Sarkar for the respondent/assessee. 6. The short issue which falls for consideration is whether the assessing officer, who had jurisdiction over the assessee at the relevant time had issued notice under section 143(2) of the Act before taking up the scrutiny assessment under section 143(3). Before we go into the facts, we take note of the legal position as laid down by the Hon'ble Supreme Court in Asstt. CIT v. Hotel Blue Moon [2010] 188 Taxman 113/321 ITR 362, wherein the Hon'ble Supreme Court held that omission on the part of the assessing officer to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. Further, we also take note of the decision in the case of CIT v. Gitsons Engineering Co. [2015] 53 taxmann.com 108/231 Taxman 506/370 ITR 87 (Mad.), wherein it was held that the word 'shall' employed in section 143(2) of the Act, contemplates that the assessing officer should....
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....d the correctness of the finding of the CIT(A) and, on facts, found that both the assessing officers, namely, the assessing officer, who had jurisdiction over the assessee till 6-4-2009 and the assessing officer, who had jurisdiction post the said date had not issued notice under section 143(2) of the Act within the prescribed period of six months from the end of the financial year in which the return was filed. This factual position could not be controverted by the revenue before us. As pointed out by the Hon'ble Supreme Court in the case of Hotel Blue Moon (supra), non-issuance of notice under section 143(2) is not a procedural irregularity and, therefore, it is not curable. Thus, on facts, it having been established that no notice was issued under section 143(2) of the Act, the order passed by the Tribunal was perfectly legal and valid. The revenue also sought to rely upon section 292BB of the Act to justify their stand that notice is deemed to be valid and sought to bring the assessee's case under the circumstances mentioned in section 292BB. This question was considered by the Tribunal and it was pointed out that section 292BB provides that where an assessee has appear....
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....r view that the Tribunal was right in rejecting the revenue's appeal. In the result, this appeal is dismissed and the substantial question of law is answered against the revenue." 10. From perusal of the above finding of the Hon'ble Jurisdictional High Court, I find that the same is squarely applicable in favour of the assessee as in the instant case also the ld. AO having jurisdiction over the assessee proceeded to commence and complete the assessment proceedings without issuing a fresh notice u/s 143(2) of the Act. 11. Hon'ble Supreme Court also in the case of ACIT vs. Hotel Blue Moon reported in [2010] 321 ITR 362 (SC) has held that the service of the statutory notice u/s 143(2) of the Act is sine-quanon to initiate/commence the assessment proceedings u/s 143(3) of the Act. This ratio laid down by the Hon'ble Apex Court was recently followed by the Coordinate Bench of Gauhati in the case of Smt. Kene Welly vs. I.T.O., Ward-1, TPS, Tezpur in ITA No. 146/Gau/2020 order dated 18.03.2021 while dealing with similar issue pertaining to AY 2015-16 and held the assessment invalid and quashed the same. 12. Thus, respectfully following the ratios laid down by the Hon'ble Courts ....