ABU BAKAR DHADA, MAHASAMUND,MAHASAMUND vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(1), RAIPUR, RAIPUR

आदेश / ORDER

PER PARTHA SARATHI CHAUDHURY, JM:

2. In this case, the Ld. CIT(Appeals)/NFAC had provided relief to the assessee on the ground that as per the remand report, notice u/s. 143(2) of the Income Tax Act, 1961 ( for short ‘the Act’) has not been issued by 3 Abu Bakar Dhada Vs. DCIT-3(1), Raipur (cross appeals) & 37/RPR/2025 the A.O to the assessee before completion of reassessment order u/s. 143(3) r.w.s. 147 of the Act. In this regard, question was put forth to the Ld. Counsel for the assessee that once the reassessment order has been quashed on the legal validity since notice u/s. 143(2) of the Act has not been served on the assessee before completion of assessment u/s. 143(3) r.w.s 147 of the Act then what else remains for the assessee to be aggrieved before this bench of the Tribunal. The Ld. Counsel answered that just for abundant precaution, he had filed the appeal before the Tribunal.

A.Y.2017-18 5. Coming to the appeal of the revenue on the said issue, it would be relevant to extract the relevant findings of the Ld. CIT(Appeals)/NFAC which reads as follows:

4 Abu Bakar Dhada Vs. DCIT-3(1), Raipur (cross appeals) & 37/RPR/2025

“I have considered the rival submissions, perused the material available on record and judicial pronouncements relied upon by the assessee as well as by the assessing officer. In the present case the admitted facts are that the assessee's case was reopened u/s. 147/148 on 20.03.2019 by issuing of notice as per the provisions of the Act and served through post by the Income Tax Officer, Mahasamund. Subsequently, the case was transfer in this office of ACIT- 3(1), Raipur on 30.08.2019. In compliance to notice u/s 148 of the Act, assessee filed his return of income through e-filing on 07.08.2019. However, Ld. AO has acted upon the said return and completed the assessment u/s.147 r.w.s. 143(3). But as per remand report notice u/s.143(2) has not been issued by the assessing officer. The assessment order u/s 147 r.w.s. 143(3), the principle of law laid down by Hon'ble Apex Court in various cases based on which coordinate bench of ITAT, Raipur has taken a view in the case of Shri Dev Narayan Sahu (supra) wherein it has been decided that, issuance of notice u/s 143(2) is a sine-qua-non for framing of an assessment u/s 143(3) of the Act, this view is well supported by the judgment of Hon'ble Apex Court in the case of ACIT vs M/s Hotel Blue Moon (2010) 321 ITR 362 (SC), wherein Hon'ble Apex Court has held that issuing of notice u/s 143(2) of the Act is mandatory and not a procedural mistake, if the notice is not served within the prescribed period then assessment order would be invalid. In view of such observations we are of the considered opinion that the order passed u/s 147 r.w.s. 143(3) in the present case was invalid on account of non-issuance of notice u/s 143(2). Thus, in terms of our aforesaid observations the assessment order framed by the Assessing Officer u/s 143(3)/148 of the Act dated 29.12.2019 being devoid and bereft of any force of law is hereby quashed.”