MR.PARVEEZ RAHIM KHAN,BANGALORE vs. INCOME TAX OFFICER, WARD-8(1), BANGALORE

During the course of hearing of the appeals, the ld. counsel for the assessee invited our attention to the assessment order in the quantum appeal with the submission that the AO has not served any notice u/s. 143(2) of the Act upon the assessee. Therefore, in the absence of valid service of notice u/s. 143(2) of the Act, the Assessing Officer has not assumed jurisdiction to frame the assessment upon the assessee. Thus, the assessment framed deserves to be quashed.

The ld. counsel for the assessee has also invited our attention to the assessment order with the submission that in the assessment order itself, the AO has mentioned that notice u/s. 143(2) of the Act could not be served upon the assessee. In the light of the admission of the AO, the fact regarding the non-service of notice u/s. 143(2) of the Act cannot be disputed.

Per contra, the ld. DR placed reliance upon the order of CIT(Appeals).

During the course of hearing of the appeal, a specific query was put to the ld. DR with regard to the service of notice u/s. 143(2) of the act upon the assessee, but the ld. DR could not demonstrate any evidence with regard to service of the notice u/s. 143(2) upon the assessee. Moreover, the observation of the AO in the assessment order with regard to non- service of notice u/s. 143(2) of the Act was also not disputed by the ld. DR. In light of these facts, where a notice u/s. 143(2) of the Act has not been served upon the assessee, the AO could not assume jurisdiction to frame the assessment u/s. 144 of the Act. Therefore, the assessment framed without service of notice u/s 143(2) of the Act is illegal and bad in law. Therefore, we quash the assessment.

Since the assessment is annulled, the penalty proceedings initiated consequent to the said assessment order has no legs to stand. Therefore, we also set aside the order of the CIT(Appeals) and delete the penalty.

In the result, the appeals of the assessee are allowed.