2004 (2) TMI 269

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....peal memo except ground Nos. 4 and 5. However, at the time of hearing, the learned counsel moved an application and requested to allow to take an additional ground of appeal, which is as under: "Because in the absence of issuance/service of notice under s. 143(2), the assessment as framed under s. 144 of the IT Act is a nullity in law and is liable to be quashed." 3. The learned Departmental Representative objected the same on the plea that this ground was not taken before the CIT(A). However, we felt that this is purely a legal issue, which can be taken at any stage. Hence, we allow to take the aforementioned additional ground of appeal. 4. The facts of the issue are that the assessee is being assessed to tax since the asst. yr. 1....

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....is completed under s. 144 on the basis of information/documents attached with the return of income filed by Smt. Kanchan Devi for the asst. yr. 1989-90 on 25th Oct., 1989." 5. The learned counsel for the assessee pleaded that from the above, it is apparent that the return of income filed by Smt. Kanchan Devi was treated as return filed in compliance to notice under s. 148 of the IT Act, 1961. Therefore, according to the learned counsel, once the return of income was treated to be filed in compliance to notice under s. 148 of the IT Act, 1961, it is mandatory to issue notice under s. 143(2) of the IT Act. However, no such notice was ever issued by the AO and the assessment order was passed ex parte under s. 144 of the IT Act, 1961. 6. ....

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....of his judgment and determine the sum payable by the assessee on the basis of such assessment......." 9. From the above, it is seen that w.e.f. 1st April, 1989, it is mandatory to give the assessee an opportunity of being heard. Before the above amendment, there was no provision for giving any opportunity to the assessee before passing ex parte assessment order under s. 144. Prior to the above amendment, there were the words "shall make the assessment". In this case, the assessment year under consideration is 1989-90, which starts from 1st April, 1989. It is held by Hon'ble Madras High Court in the case of CIT vs. Craigmore Plantation India Ltd. (2002) 173 CTR (Mad) 526 : (2002) 253 ITR 447 (Mad) that the law applicable to any assessment....