SHARIFABAI MOHD. YUSUF MEMON,MUMBAI vs. ITO 13(1)(4), MUMBAI

This is an appeal filed by the assessee. The relevant assessment year is 2006-07. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-24, Mumbai [in short ‘CIT(A)’]and arises out of the assessment completed u/s 143(3) of the Income Tax Act 1961, (the ‘Act’).

We find that hearing took place before the Tribunal on 10.02.2016 and 25.07.2017 also. As per the Order Sheet noting dated 10.02.2016, the Bench directed the Ld. DR to produce the record including proof of service of notice u/s 143(2) of the Act. Again when the hearing took place on 25.07.2017, it was seen that in spite of Sharifabai Modh. Yusuf Bench, the Ld. DR could not produce the assessment record and sought further time. Considering his request, a last opportunity was given to the Ld. DR to produce the said assessment record. The hearing took place on 28.05.2018, but the Ld. DR expressed his inability to produce the assessment record along with proof of service of notice u/s 143(2) and submitted that the case may be decided on merit. 3. On the other hand, the Ld. counsel of the assessee submits that the appellant has not been served with notice u/s 143(2), which has been mentioned wrongly by the Assessing Officer (AO) as issued on 31.07.2017 and duly served on the assessee at para 2 of the assessment order dated 29.12.2008. The Ld. counsel submits that the appellant had sought information vide application dated 11.09.2015 under the Right to Information Act on (i) date of service of notice issued u/s 143(2) and 142(1) for the assessment year 2006-07 and (ii) photocopies of services of the above notices. In response to it, the appellant received a reply dated 13.10.2015 from the Income Tax Officer-17(3)(3) and Central Public Information Officer, Mumbai stating: “3. In this connection, I have to state that the information sought pertains to AY 2006-07. The case was assessed in the charge of CIT-13, Mumbai (erstwhile). Vide Board’s order dated 15.11.2014 restructuring of the I.T. Department took place where CIT-12 and CIT-13, charges were merged together and formed a new city i.e. Pr. CIT-17, Mumbai. Hence, the whereabouts of the said records is being located and on receipt of the same, the required information would be supplied to the applicant.”

We have heard the rival submissions and perused the relevant materials on record. The issue here is the service of notice u/s 143(2) as mentioned at para 2 of the assessment order dated 29.12.2008 passed by the AO. As mentioned hereinbefore, the Bench directed the Ld. DR to produce the assessment record including proof of service of notice u/s 143(2) of the Act. The Ld. DR failed to produce it as mentioned earlier. Also the Central Public Information Officer, Mumbai failed to give the above information to the appellant under the Right to Information Act, 2005. In Hotel Blue Moon (supra), the Hon’ble Supreme Court has held inter alia that (i) the Assessing Officer must necessarily issue notice u/s 143(2) of the Act within the time prescribed in the proviso to section 143(2), (ii) omission on the part of the assessing authority to issue notice u/s 143(2) cannot be a procedural irregularity and is not curable, and the requirement of notice u/s 143(2) cannot be dispensed with.