pri Non issue of notice U/s. 143(2) invalidates reassessment Non issue of notice U/s. 143(2) invalidates reassessment

Case Law Details

Case Name : A.M. Muthiah & Anr. Vs Dy. CIT (ITAT Mumbai)
Appeal Number : ITA Nos. 1101, 1105 & 1106/Mum/2014
Date of Judgement/Order : 11/12/2017
Related Assessment Year : 2002-03

A.M. Muthiah & Anr. Vs DCIT (ITAT Mumbai)

Issuance of notice under section 143(2) is mandatory, and absence thereof invalidates even a reassessment made in pursuance to section 148 and reliance placed by AO on section 292BB was misplaced.

FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-

The captioned three appeals are by two different assessees belonging to one family and since common issues are involved, they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.

2.  We may first take-up appeal in ITA No. 1105/Mum/2014 which is directed against the order of Commissioner (Appeals)-38, Mumbai dated 29-11-2013 pertaining to the assessment year 2002-03, which in turn has arisen from the order dated 24-3-2005 passed by the assessing officer under section 143(3) read with section 147 of the Income Tax Act, 1961 (in short ‘the Act’). Although in the Memo of appeal the following Grounds have been raised :–

“1. The learned Commissioner (Appeals) erred in confirming the action of the assessing officer in treating the long term capital gain of Rs. 1,06,95,000 earned on redemption of IDBI deep discount bonds as interest income under the head of Income from Other Sources.

2. The learned Commissioner (Appeals) erred in confirming the transaction of transfer of bonds as a colourable device and thereby also erred in not granting the benefit of CBDT Circular dated 12-3-1996.

3. Without prejudice to the above grounds, the learned Commissioner (Appeals) erred in not holding that redemption of deep discount bonds is a transfer within the meaning of section 2(47) of the Income Tax Act, 1961 as it is covered by extinguishment of right and relinquishment of right as provided in section 2(47).

4. The learned Commissioner (Appeals) erred in not appreciating that the notice under section 148 is bad in law.

5. The learned Commissioner (Appeals) erred in holding that reopening of assessment under section 147 of the Income Tax Act, 1961 is not valid.”

but we may advert to the following Additional Ground of appeal which has been raised by the assessee :–

“1. The learned Commissioner (Appeals) erred in not quashing the assessment order passed under section 143(3) read with section 147 of the Act without issue of notice under section 143(2) of the Act.”

3. At the time of hearing, the learned representative for the assessee vehemently pointed out that the issue raised in the Additional Ground of appeal is a legal issue which can be decided on the basis of the facts available on record and, therefore, the same deserves to be admitted following the ratio of the judgment of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT, 229 ITR 383 (SC)as well the judgment of the Hon’ble Bombay High Court in the case of CIT v. Pruthvi Brokers & Shareholders (P) Ltd. (2012) 349 ITR 336.

4. On the other hand, the learned Departmental Representative appearing for the Revenue did not controvert the aspect that the relevant facts necessary to adjudicate the Additional Ground are on record, but contended that the Additional Ground was not raised by the assessee originally at the time of filing of the appeal though said issue was agitated before the Commissioner (Appeals), who has decided it against the assessee.

5. We have carefully considered the rival stands with respect to the admission of the Additional Ground of appeal and, in our considered opinion, the same deserves to be admitted. Notably, the Additional Ground raised involves a point of law, which goes to the jurisdiction of the assessing officer to make the impugned assessment, and since the facts necessary to adjudicate the same are emerging from the record and do not require any fresh investigation, the same deserves to be admitted. It is also note-worthy that before the Commissioner (Appeals), assessee had raised a specific plea on the aspect of non-issuance of notice under section 143(2) of the Act and the Commissioner (Appeals) has decided the issue after obtaining a report from the assessing officer, though he has decided against the assessee. Be that as it may, we are only pointing out the aforesaid to bring out that the Additional Ground raised by the assessee does not involve a point which is new to the Revenue inasmuch as at the first appellate stage, the assessing officer was confronted on it and a Remand report was also obtained. Considering the aforesaid aspects, we admit the Additional Ground for adjudication. This aspect was made known to the parties at the time of hearing and accordingly the rival counsels were heard on the merits of the said Ground also.

6. Before we proceed to take-up the issue raised in the Additional Ground of appeal, we may briefly touch upon the background in which the present appeal has come up before the Tribunal. In this case, assessee-individual had filed return of income for assessment year 2002-03 on 29-7-2002, which was subsequently revised on 7-8-2003. The discussion in the assessment order reveals that the notice under section 148 of the Act was issued on 29-1-2004, which was also revised on 13-5-2004 and, in response, assessee through a communication dated 31-5-2004 requested that the revised return filed on 7-8-2003 be treated as a return filed in response to notice issued under section 148 of the Act. Notably, assessee is an individual who is deriving income from salary as a Director of SAF Yeast Company and also income from other sources, etc. In the revised return of income filed on 07-8-2003, assessee had, inter alia, declared income by way of Long Term Capital Gain on redemption of 1150 Deep Discount Bonds issued by IDBI in 1992. The assessee had declared income by way of sale consideration of Rs. 1,38,00,000, and after reducing therefrom the original price, the balance of Rs. 1,06,95,000 was declared as income by way of Long Term Capital Gain. In this context, the assessing officer has not differed with the assessee on the determination of quantum of income on redemption of IDBI Bonds, but according to him, such income was not assessable as Capital Gain, but as ‘interest income’ assessable under the head ‘income from other sources’. Accordingly, in the assessment finalised under section 143(3) read with section 147 dated 24-3-2005, the amount of Rs. 1,06,95,000 has been assessed as interest earned on redemption of IDBI Bonds under the head ‘income from other sources’. The reasons which have prompted the assessing officer to disagree with the assessee on the nature of income can be understood as follows. Originally, the assessee was holding 1150 Deep Discount Bonds issued by IDBI in 1992, which was subscribed by the assessee’s father in his name (since assessee was a minor at that time) @ Rs. 2,700 per Bond. The terms and conditions of the issue of Bonds provided for a Put and Call option at the end of every 5 years from the date of issue, and the final maturity was to be on 31-3-2012. The value to be paid by IDBI upon redemption of Bond being exercised at the end of each of the 5 year’s block was also specified at the time of issue. On 24-12-2001, the assessee sold his 1150 Bonds to his brother, Shri A.M. Muthiah and such transfer has also been duly registered with the IDBI. On the same date, assessee acquired 1150 Deep Discount Bonds belonging to his brother, a transfer which was also registered with IDBI. Both the above transfers were made @ Rs. 12,000 per Bond amounting to Rs. 1,38,00,000. On 31-3-2002, IDBI prematurely redeemed these Bonds. Notably, the amount paid by IDBI on the premature redemption of the Bond was also Rs. 12,000 per each Bond, which corresponded with the amount at which assessee and his brother transacted with each other. In the revised return filed by the assessee, the Capital Gain on sale of the Bonds was computed at Rs. 1,06,95,000, being the difference between the sale price, i.e. Rs. 12,000 per Bond as reduced by the original subscribed value of Rs. 31,05,000. In the assessment finalised by the assessing officer on 24-3-2005, the assessing officer held that the transaction of sale and purchase of Bonds effected by the assessee with his brother was a sham transaction, which was done with the objective of enabling the assessee to treat the income from the transfer of Bonds as Capital Gain, and not as interest income because if assessee would have received the equivalent proceeds from IDBI on account of redemption of originally held Bonds on maturity, the differential would have been taxed as ‘interest income’ under the head income from other sources’. Ostensibly, Long Term Capital Gain is assessable at a concessional rate of tax, whereas interest income under the head ‘income from other sources’ is liable to be taxed at the normal rate of taxation. The assessing officer also noted that the TDS certificate issued by the IDBI at the time of redemption on maturity also refers to the income as ‘interest income’ and, therefore, the treatment of such income by the assessee as Capital Gain on the basis of the transactions effectuated with his brother was intended to lower the ultimate tax liability. Thus, the assessing officer assessed the income as interest income under the head ‘income from other sources’. It transpires that the said assessment came up before the Tribunal, and vide its order in ITA No. 774/PN/2006 dated 15-3-2007, the matter was restored back to the file of the Commissioner (Appeals) without expressing any opinion on the merits of the case for afresh adjudication. In pursuance to such an order of the Tribunal dated 15-3-2007 (supra), the impugned order has been passed by the Commissioner (Appeals), against which the assessee is in further appeal before us.

7. Now, in the above background, we may first take-up the contentions raised by the assessee in the Additional Ground to the effect that the assessment order passed by the assessing officer under section 143(3) read with section 147 of the Act is void and illegal inasmuch as it has been passed without issuance of mandatory notice required to be issued under section 143(2) of the Act. In support of the Ground of appeal, the learned representative referred to the assessment order and pointed out that nowhere it is mentioned that any notice under section 143(2) of the Act has been issued. In particular, our attention has been drawn to point (iii) in para 6.4 (I) of the assessment order, wherein a tabulation has been prepared by the assessing officer regarding the various notices/letters/summons issued during the assessment proceedings. On the basis of the said tabulation, the learned representative pointed out that nowhere does it contain reference to any notice issued under section 143(2) of the Act. Thirdly, the learned representative also referred to pages 138-142 of the Paper Book wherein is placed the certified copy of the order sheet entries of the file of the assessing officer. On this basis, it is sought to be demonstrated that there is no record of the assessing officer having issued any notice under section 143(2) of the Act prior to the finalisation of the impugned assessment under section 143(3) read with section 147 of the Act. The learned representative pointed out that even before the Commissioner (Appeals) when the said point was raised, there has been no specific assertion by the assessing officer in the Remand proceedings. The learned representative for the assessee pointed out that Commissioner (Appeals) has erroneously referred to a communication dated 23-11-2004 as being a notice purportedly issued under section 143(2) of the Act. In this context, the learned representative referred to page 7 of the Paper Book wherein is placed a copy of the communication of the assessing officer dated 23-11-2004 which, as per the learned representative, is not a notice contemplated under section 143(2) of the Act. According to him, it is only a reply to letters of the assessee dated 23-3-2004 and 31-5-2004 asking for reasons for issuance of notice under section 148 of the Act. For all the said reasons, it was therefore contended that in this case notice under section 143(2) of the Act has not been issued prior to the finalisation of assessment under section 143(3) read with section 147 of the Act and, therefore, the assessment was void and illegal. On the legal position, reliance has been placed on the following decisions to contend that issuance of notice under section 143(2) of the Act is mandatory before completion of assessment :–

(i) Assistant CIT v. Hotel Blue Moon, 321 ITR 362 (SC);

(ii) CWT v. HUF of H.H. Late J.M. Scindia, 300 ITR 193 (Bom.);

(iii) Assistant CIT v. Geno Pharmaceuticals Ltd. (2013) 214 Taxman 83 (Bombay);

(iv) Sapthagiri Finance & Investments v. ITO, in (TC (Appeal) No. 159 of 2006, dt. 17-7-2012);

(v) CIT v. Rajeev Sharma, 336 ITR 678 (Allahabad);

(vi) Greater Noida Development Authority, 281 CTR 204;

(vii) Raj Kumar Chawla v. ITO, (2005) 94 ITD 1 (Delhi)(SB);

(viii) DCIT v. Dharmpal Satyapal Ltd. (2016) 175 TTJ 663 Delhi ITAT;

(ix) Santosh G. Sawant, ITA No. 830/Mum/2011 dated 30-6-2015; and

(x) M/s. Kanchanjunga Impex (P) Ltd. v. ITO, ITA No. 6057/Mum/2013 dated 23-9-2015

8. On this aspect, the learned Departmental Representative has not made any specific contention contending that any notice under section 143(2) of the Act was issued, but has relied upon the order of the Commissioner (Appeals), especially the following discussion:–

“9.0 In the ground No. 2, the appellant contended that the assessing officer has not issued and served upon the appellant a valid notice under section 143(2) of the Act. It is submitted that the assessing officer issued notice under section 143(2) of the Act dated 23-11-2004 asking the appellant to file reply to the notice by 31-12-2004. The notice states of reopening of assessment proceedings for assessment year 2001-02 whereas the order passed is for the assessment year 2002-03. The appellant, therefore, submitted that as notice stating wrong assessment year, the order passed pursuance to said notice is without jurisdiction and liable to be annulled.

10.0 In response to the above submission, the assessing officer submitted the following in the written submissions :–

“3. The assessee has raised the contention vide ground No. 2 that the assessing officer has not issued and served upon the assessee a valid notice under section 143(2) of the Income Tax 1961. The notice under section 148 issued in pursuant to proceedings initiated under section 147 clearly states that the proceedings were for the assessment year 2002-03. The notice issued under section 148 gives the jurisdiction to the assessing officer over the assessee in respect of the proceeding initiated for the assessment year 2002-03. Further the ground raised by the assessee that the notice states of reopening of assessment proceeding for assessment year 2001-02 whereas order passed for assessment year 2002-03. In this connection it is submitted, the assessment order mentioned in the referred notice is assessment year 2001-02 however the facts mentioned in the said notice relating to re-opening of assessment proceeding relates to the assessment year 2002-03. Therefore the mistake committed due to typing error and inadvertence cannot be the basis of order to be annulled. Further, the assessee has submitted the information in relation to the said notice for the assessment year 2002-03 only.”

Decision :–

11.0 I have carefully examined the facts of the case, the stand taken by the assessing officer in the assessment order and the remand report, the grounds of appeal, the written submissions filed by the appellant during the hearing proceedings.

11.1 The above mistake as pointed out by the appellant is a curable mistake under section 292B of the Act since in substance, the contents of the notice issued under section 143(2) dated 23-11-2004 relates to the assessment year 2002-03, though wrongly mentioned as assessment year 2001-02. The intention of the assessing officer is clearly expressed as one relating to assessment year 2002-03 though mistakenly the assessment year is mentioned as 2001-02. Therefore, the ground no. 2 of the appellant is hereby dismissed.”

9. We have carefully considered the rival submissions. Insofar as the legal position on the point canvassed by the assessee is concerned, the same is quite potent. The Hon’ble Madras High Court in the case of Sapthagiri Finance & Investments (supra) was considering a similar objection and Revenue contended therein that omission to issue notice under section 143(2) of the Act was a procedural irregularity and it would not invalidate the assessment. The Hon’ble High Court held that in the absence of a notice under section 143(2) of the Act, the assessment made under section 148 of the Act could not be held to be validly made. In coming to such conclusion, the Hon’ble High Court noted that even in a situation where the matter was discussed with the assessee and his signature was affixed, it would not mean that the procedure of notice under section 143(2) of the Act stood complied with or that the assessee had waived notice. Thus, as per the judgment of the Hon’ble Madras High Court, the absence of a notice under section 143(2) of the Act invalidates even a reassessment made in pursuance to section 148 of the Act. The Hon’ble Bombay High Court in the case of Geno Pharmaceuticals Ltd. (supra) has also affirmed the same legal position to the effect that issuance of notice under section 143(2) of the Act is mandatory, and in the absence of the same, the assessing officer cannot proceed to make an inquiry on the return filed in pursuance to notice issued under section 148 of the Act. The Hon’ble Supreme Court in the case of Hotel Blue Moon (supra) also held that the prescribed notice under section 143(2) of the Act has to be issued within the period prescribed thereof in order to make an assessment. Though the judgment of the Hon’ble Supreme Court was in the context of a block assessment made under section 158BC of the Act, but what is of importance to note is that the Hon’ble Supreme Court has emphasised on adherence to the period prescribed in the proviso to section 143(2) of the Act for issuance of notice prior to assessment. In our considered opinion, the said ratio is fully attracted in the instant case too. Other decisions which have been relied upon by the assessee before us also are on the same footing and prescribe that notice under section 143(2) of the Act is mandatory, and in the absence of the same, the resultant assessment cannot be construed to be a valid assessment.

10. In the aforesaid background, we may now come to the facts of the instant case. The contention of the assessee is that prior to finalization of the assessment under section 143(3) read with section 147 of the Act dated 24-3-2005, the assessing officer did not issue the mandatory notice under section 143(2) of the Act. Firstly, our attention has been drawn to the tabulation in the assessment order itself, which does not contain reference to any notice issued under section 143(2) of the Act. The same is also emerging from a perusal of the certified copy of the order sheet entries, which has been placed in the Paper Book at pages 138-142. Now, in the order of the Commissioner (Appeals), a reference has been made to a communication dated 23-11-2004 as being “notice issued under section 143(2) dated 23-11-2004 relates to the assessment year 2002-03, though wrongly mentioned as assessment year 2001-02”. The said averment of the Commissioner (Appeals) has been contested by the assessee before us by referring to the copy of the said communication, which is placed at page 7 of the Paper Book. We have examined the said communication dated 23-11-2004 and do not find the same to have been issued in the context of section 143(2) of the Act. The contents of the said communication addressed to the assessee by the assessing officer have been perused by us. Firstly, it refers to the some office note issued under section 148 of the Act on 29-1-2004 in response to which assessee is stated to have filed letter dated 23-3-2004 seeking extension of time for filing reply. Secondly, it refers to the revised notice under section 148 dated 13-5-2004, in response to which assessee is stated to have filed letter dated 31-5-2004 asking for reasons for issuance of notice under section 148 of the Act. After making the aforesaid averments, the said communication addresses to the assessee, a copy of the reasons recorded before issuing notice under section 148 of the Act; the reasons recorded by the assessing officer have been extracted in this communication. In the end, assessee has been requested to file exhaustive/elaborate reply or by filing an I.T return as early as possible, preferably by 03-12-2004. The contents of the said communication though referring to assessment year 2001-02 (which is apparently a mistake since the correct assessment year is 2002-03), do not justify the assertion of the Commissioner (Appeals) that it is a notice under section 143(2) of the Act. In fact, no effort has been made by the Commissioner (Appeals) or even by the assessing officer in his Remand report to the Commissioner (Appeals), which has been reproduced by him, to explain as to how and under what circumstances the said communication is to be understood as a notice issued under section 143(2) of the Act. Therefore, factually speaking, it is indeed a case where no notice under section 143(2) of the Act has been issued before finalisation of assessment under section 143(3) read with section 147 of the Act dated 24-3-2005. In the context of the communication dated 23-11-2004, we have also perused the order sheet entries made by the assessing officer, which reads as under :-

“23-11-2004 Letter sent to A.M. Muthu giving reasons recorded for issue of notice under section 148 and asking to file exhaustive reply by 3-12-2004.”

The aforesaid also reinforces the inference that the said communication has not been looked upon as notice issued under section 143(2) of the Act by the assessing officer and, therefore, it would be appropriate to deduce that in the instant case no notice under section 143(2) of the Act has been issued prior to assessment dated 24-3-2005 (supra).

11. Before concluding on this aspect, we may also refer to another plea of the Revenue, which has also been referred by the Commissioner (Appeals) as a matter of passing in para 11.1 of his order. As per the Revenue, non-issuance of a notice under section 143(2) of the Act is a procedural defect which is curable in terms of section 292B of the Act. In our considered opinion, as has been found by us on the examination of the contents of the communication dated 23-11-2004 in the earlier paras, it could not be said that the same is in substance and effect a notice under section 143(2) of the Act. The said communication merely seeks to reply to the communications of the assessee seeking reasons recorded for issuance of notice under section 148 of the Act and no further. Thus, the stand of the Commissioner (Appeals) as well as that of the Revenue before us, on the basis of section 292B of the Act, is not justified.

12. Section 292BB of the Act has also been pressed into service by the Revenue, which prescribes that where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. With reference to section 292BB of the Act, the stand of the assessee before us is that the said section does not cover cases where mandatorily required notice has not been issued at all. For the said proposition, reliance has been placed on the following judgments :–

(i) Pr. CIT v. Silver Line, 383 ITR 455 (Delhi);

(ii) Pr. CIT v. Shri Jai Shiv Shankar Traders (P) Ltd. 383 ITR 448 (Delhi);

(iii) Amiti Software Technologies (P) Ltd. ITA No. 540/Bang/2012 dated 07-2-2014; and

(iv) Travancore Diagnostics (P) Ltd. v. ACIT, 390 ITR 167 (Kerala)

13. Notably, the Hon’ble Delhi High Court in the case of Silver Line (supra) was considering whether the failure by the assessing officer to issue notice under section 143(2) of the Act was fatal to the reassessment proceedings finalized under section 147/148 of the Act. The defence of the Revenue was based on the provisions of section 292BB of the Act by pointing out that assessee had co-operated and participated in the assessment proceedings and, therefore, it was precluded from raising an objection with respect to non-issuance of notice under section 143(2) of the Act. The Hon’ble High Court relied upon the judgment of the Hon’ble Allahabad High Court in the case of Parikalpana Estate Development (P) Ltd. in (ITA Nos. 160 & 161 of 2009, dt. 11-10-2012) as well as its earlier judgment in the case of Shri Jai Shiv Shankar Traders (P) Ltd. (supra) and made a distinction between a failure to ‘issue’ notice and a failure to ‘serve’ a notice on the assessee, and held that section 292BB of the Act applies insofar as the failure of ‘service’ of notice is concerned, and not with regard to failure to ‘issue’ notice. In other words, as per the Hon’ble High Court, the failure of the assessing officer, in reassessment proceedings under section 147/148 of the Act, to issue notice under section 143(2) of the Act prior to finalisation of reassessment order cannot be condoned on the strength of section 292BB of the Act. To the similar effect is the judgment of the Hon’ble Kerala High Court in the case of Travancore Diagnostics (P) Ltd. (supra), and considering the aforesaid judicial rulings, in our view, the reliance placed by the Revenue on section 292BB of the Act in the instant case is misplaced.

14. In view of the aforesaid discussion, and in the background of the fact that the assessing officer had failed to issue notice under section 143(2) of the Act before finalising the reassessment proceedings, the impugned assessment is illegal and unsustainable and is hereby directed to be quashed. Since we have held the assessment order itself to be illegal and unsustainable, the other Grounds raised by the assessee in the Memo of appeal reproduced above, are rendered academic and are not being adjudicated for the present.

15. Thus, insofar as appeal of assessee in ITA No. 1105/Mum/2014 is concerned, the same is hereby allowed, as above.

16. Now, we may take-up the appeal filed by the assessee in ITA No. 1106/Mum/2014, which is directed against the order of Commissioner (Appeals)-38, Mumbai dated 28-11-2013 pertaining to the assessment year 2002-03, which in turn has arisen from the order dated 27-11-2008 passed by the assessing officer under section 153A read with section 143(3) of the Income Tax Act, 1961.

17. The said assessment has been made in pursuance to a search action carried out on the assessee under section 132(1) of the Act dated 30-11-2006. The assessing officer notes that in response to the notice issued under section 153A of the Act, assessee filed his return of income declaring income of Rs. 1,20,28,255, which was the same as declared in the revised return filed on 07-8-2003 declaring total income of Rs. 1,20,28,255. In the ensuing assessment finalised under section 153A read with section 143(3) of the Act dated 27-11-2008, the total income has been determined at Rs. 1,20,28,255, which was the same as the income determined in the reassessment order passed under section 143(3) read with section 147 of the Act dated 24-3-2005 (supra), which has been dealt with by us in the earlier paras. Though there was no difference between the assessed and the returned income, the only difference was that the income from the Bonds of Rs. 1,06,95,000 declared by the assessee as Capital Gain has been assessed as income from other sources in consonance with the order earlier passed by the assessing officer under section 143(3) read with section 147 of the Act dated 24-3-2005 (supra). This has been affirmed by the Commissioner (Appeals), against which assessee is in appeal before us.

18. It was a common point between the parties that our decision in the appeal of assessee in ITA No. 1105/Mum/2014, which related to the assessment made by the assessing officer under section 143(3) read with section 147 of the Act dated 24-3-2005 (supra), would also be relevant for this appeal also inasmuch as the assessing officer would be required to make the computation in the impugned assessment under section 153A read with section 143(3) of the Act in consonance with the assessment dated 24-3-2005 (supra).

19. Accordingly, the assessing officer is directed to recompute the income in the impugned assessment in consonance with our order in the appeal of the assessee in ITA No. 1105/Mum/2014 against order of assessing officer under section 143(3) read with section 147 of the Act in the earlier paras. Thus, assessee succeeds in this appeal also.

20. Now, we may refer to the appeal in ITA No. 1101/Mum/2014, which is in the case of assessee’s brother, Shri A.M. Muthiah. The said appeal is directed against the order of Commissioner (Appeals)-38, Mumbai dated 29-11-2013 pertaining to the assessment year 2002-03, which in turn has arisen from the order dated 24-3-2005 passed by the assessing officer under section 143(3) read with section 147 of the Income Tax Act, 1961.

21. At the time of hearing, it was a common point between the parties that the facts and circumstances and the issues raised in this appeal are identical to those considered by us in the appeal of assessee’s brother in ITA No. 1105/Mum/2014 in the earlier paras. It was also a common point between the parties that in this appeal also the Additional Ground of appeal relating to non-issuance of notice under section 143(2) of the Act prior to finalisation of the assessment stands on identical footing as considered by us in the appeal of assessee’s brother in ITA No. 1105/Mum/2014 in the earlier paras. Therefore, under these circumstances, our decision in ITA No. 1105/Mum/2014 applies mutatis mutandisin this appeal also. Accordingly, the appeal of the assessee is also allowed on the same terms as the appeal of assessee’s brother in ITA No. 1105/Mum/2014 is allowed by us in the earlier paras.

22. Resultantly, the captioned appeals are allowed, as above.

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