Issue- Learned CIT (A) has erred both on facts and in law in confirming the order assed by the AO despite the fact that the same has been passed without issue of statutory notice under section 143(2) of the Act.
Contention of the Assessee
Assessee stated that the assessment order has been passed without issuing the notice u/s. 143(2) of the I.T. Act. He stated that this Bench can peruse the assessment order and the record which clearly shows that the AO has not even issued the notice u/s. 143(2) of the I.T. Act before completion of the assessment in dispute. He submitted that the assessee has filed his written submissions on this issue before the Ld. First Appellate Authority but has also rejected the request of the assessee in routine manner by stating that non-issue of notice u/s. 143(2) does not render the reassessment. Finding of the Ld. CIT(A) is contrary to the law 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.
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 reassessment 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 judgments:-
