N. AHAMED ALI Vs. THE INCOME TAX OFFICER

JUDGEMENT

(1.) THE present tax case appeal, at the instance of the assessee, raises the following substantial questions of law for consideration: -

(2.) IT is a case of assessment under Section 143(3) read with Section 253 without the issuance of the mandatory notice under Section 143(2) of the Income Tax Act, 1961. When the assessee preferred an appeal against the order of the assessing officer on the ground that no notice was issued under Section 143(2), the Commissioner of Income Tax (Appeals) held in favour of the assessee. On a challenge to the said order by the department before the Tribunal, placing reliance upon the decision of this Court in M/s. Areva T & D India Ltd., v. Assistant Commissioner of Income Tax, : (2007) 294 ITR 233, the Tribunal set aside the order of the Commissioner of Income Tax (Appeals) and remanded the matter to the assessing officer. The said order of the Tribunal was challenged before this Court in W.P. No.4885 of 2009 and the writ petition was allowed directing the writ petitioner to take steps to bring the legal representatives of the deceased assessee on record before the Tribunal. Thereafter, when the proceedings continued before the Tribunal, the decision of the Supreme Court in Commissioner of Income Tax v. Hotel Bluemoon : (321 ITR 362) was relied upon by the assessee for the proposition that the issuance of notice under Section 143(2) is mandatory and the omission is not curable. Nevertheless, the Tribunal, following the decision of this Court in M/s. Areva T & D India Ltd., v. Assistant Commissioner of Income Tax, : (2007) 294 ITR 233, remanded the matter to the assessing officer, against which the appellant has filed the present appeal.

(3.) THE question that arises for consideration is whether the proceedings of the department for the purpose of assessment under Section 143(3) would be justified without the issuance of the mandatory notice under Section 143(2) of the Income Tax Act?