M/S GLIADIN INTER TRADE PVT. LTD.,KOLKATA vs. I.T.O.,WARD-6(2), KOLKATA

At the outset itself, Shri Sunil Surana, FCA, ld.AR for the assessee has raised the legal issue of non issuance of 143(2) notice before completing the assessment order u/s. 143(3)/147 of the Income-tax Act, 1961 ( hereinafter, the ‘Act’) and submitted that even though this legal issue was raised before Ld. CIT(A), he did not adjudicate the same.

The Ld AR drew our attention to the ground no. 4 of the assessee’s appeal before the ld. CIT(A) raised by the assessee is as under:- “4. For that the Ld. AO erred in completing the assessment u/s. 143(3) without the issue of statutory notice u/s. 143(2) when the return in response to the notice u/s. 148 was duly filed requesting the AO to treat the return of income originally filed as return in response to notice u/s. 148 and, therefore, the entire reassessment order without the issue of statutory notice is liable to be cancelled.

According to the ld.AR this issue has not been considered by the ld. CIT(A), who has addressed the specific legal issue by including the same when he adjudicated M/s.Gladin Inter Trade P.Ltd. ground nos. 1 to 4 together and not adjudicated the aforesaid legal issue. I note that by raising the ground no.4 before the Ld CIT(A), the assessee has challenged the validity of re-opening which is a legal issue which if found valid goes to the root of the re- assessment itself. However, I note that the ld. CIT(A) has not given any finding in respect of ground no. 4 specifically raised by the assessee. Therefore, I set aside the impugned order of the ld. CIT(A) for deciding the legal issue as raised before him as ground no. 4 and remand the matter back to him and to adjudicate the same after giving the assessee adequate opportunity of hearing to the assessee.

In the result, the appeal of the assessee is allowed for statistical purpose.