JAGANNATH CHANDU SHETTY,KALYAN vs. ITO WD 3(2), KALYAN

O R D E R

PER R.C.SHARMA (A.M): These are the appeals filed by the assessee against the order of CIT(A), Mumbai, for the assessment years 2005-06 & 2006-07, in the matter of order passed u/s.143(3)/147 of the I.T.Act. 2. During the course of hearing ld. AR has raised additional ground, which reads as under :- “Under the facts and circumstances of case and in law, the AO has erred in not issuing the notice u/s.143(2) of the Act and completing the assessment proceeding and thus the order passed u/s.143(3) r.w.s.147 of the Act, being bad in law should be annulled.” The above additional ground so raised is absolutely a legal ground which goes to the root of the issue. In view of the decision of Hon’ble Supreme Court in the case of National Thermal Power Corporation Ltd., 229 ITR 383(SC), we accept the additional ground for adjudication which is absolutely a legal ground. 3. It was contended by ld. AR that no notice u/s.143(2) was issued by the AO before completion of assessment, which renders the entire assessment as invalid. Our attention was invited to the order of AO & CIT(A), wherein nowhere issue of notice u/s.143(2) was mentioned. It was contended by ld. DR that fact of issue of notice u/s.143(2) can be verified only from the case records of the AO. He further contended that merely not mentioning the issue of notice u/s.143(2) in the assessment order cannot lead to the conclusion that no notice has been issued. 4. We have considered rival contentions and found that additional ground so raised is absolutely legal in nature, therefore, we accept the same for adjudication. Since facts with regard to issue of notice u/s.143(2) is not clear from the order of AO or CIT(A), therefore, in all fairness, we restore both these appeals back to the file of AO to verify the fact of issue of notice u/s.143(2) before completion of assessment. If the AO finds that notice u/s.143(2) was not issue, we direct the AO to cancel the assessment so framed. 5. In the result, both appeals of the assessee are allowed in part for statistical purposes. Order pronounced in the open court on this 23/06/ 2016. (RAM LAL NEGI) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER