A.M. MUTHIAH, MUMBAI V. ASST CIT RATNAGIRI CIR, RATNAGIRI,

ITA 1101/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8048 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-09-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH; R P MEENA
• Keywords: Reopening of assessment; Salary income; Procedural lapse; Block assessment; Revised return; Reassessment proceedings
• Section: 143(3); 153A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 1101/MUM/2014 : A.Y : 2002 - 03 A.M. MUTHIAH 419, SWASTIK CHAMBERS, CHEMBUR, MUMBAI 400 071 (APPELLANT) PAN : ACMPA5774D VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 40, MUMBAI (RESPONDENT) ITA NOS. 1105 & 1106/MUM/2014 : A.Y : 2002 - 03 A.M. ARUNACHALAM 419, SWASTIK CHAMBERS, CHEMBUR, MUMBAI 400 071 (APPELLANT) PAN : AAWPA7571J VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 40, MUMBAI (RESPONDENT) APPELLANT BY : SHRI J.P. BAIRAGRA RESPONDENT BY : SHRI R.P. MEENA (CIT - DR) & SHRI SAURABH DESHPANDE DATE OF HEARING : 1 3 / 09 /2017 DATE OF PRONOUNCEMENT : 11 /12/2017 O R D E R PER G.S. PANNU , AM : THE CAPTIONED THREE APPEALS ARE BY TWO DIFFERENT ASSESSEES BELONGING TO ONE FAMILY AND SINCE COMMON ISSUES ARE INVOLVED, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. 2. WE MAY FIRST TAKE - UP APPEAL IN ITA NO. 1105 /MUM/2014 WHICH IS DIRECTED AGAINST THE ORDER OF CIT(A) - 38, MUMBAI DATED 29.11.2013 PERTAINING TO THE ASSESSMENT YEAR 2002 - 03 , WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 24.03.2005 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). ALTHOUGH IN THE MEMO OF APPEAL THE FOLLOWING GROUNDS HAVE BEEN RAISED : - 1. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN TREATING THE LONG TERM CAPITAL GAIN OF RS.1,06,95,000 / - EARNED ON REDEMPTION OF IDBI DEEP DISCOUNT BONDS AS INTEREST INCOME UNDER THE HEAD OF INCOME FROM OTHER SOURCES. 2. THE LEARNED CIT (APPEALS) ERRED IN CON F I R MING THE TRANSACTION OF TRANSF ER OF BONDS AS A COLOURABLE DEVICE AND THEREBY ALSO ERRED IN NOT GRANTING THE BENEFIT OF CBDT CIRCULAR DATED 12/03/1996. 3. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LEARNED CIT (APPEALS) ERRED IN NOT HOLDING THAT REDEMPTION OF DEEP DISCOUNT BONDS IS A TRANSFER WITHIN THE MEANING OF SECTION 2(47) OF THE INCOME TAX ACT, 1961 AS IT IS COVERED BY EXTINGUISHMENT OF RIGHT AND RELINQUISHMENT OF RIGHT AS PROVIDED IN SECTION 2(47). 4. THE LEARNED CIT (APPEALS) ERRED IN NOT APPRECIATING THAT THE NOTICE UNDER SEC TION 148 IS BAD IN LAW. 5. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 IS NOT VALID. BUT WE MAY ADVERT TO THE FOLLOWING ADDITIONAL GROUND OF APPEAL WHICH HAS BEEN RAISED BY THE AS SESSEE : - 1. THE LEARNED CIT(A) ERRED IN NOT QUASHING THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT WITHOUT ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT. 3 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. 3. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR TH E ASSESSEE VEHEMENTLY POINTED OUT THAT THE ISSUE RAISED IN THE ADDITIONAL GROUND OF APPEAL IS A LEGAL ISSUE WHICH CAN BE DECIDED ON THE BASIS OF THE FACTS AVAILABLE ON RECORD AND, THEREFORE, THE SAME DESERVES TO BE ADMITTED FOLLOWING THE RATIO OF THE JUDGE MENT OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS COMMISSIONER OF INCOME TAX , 229 ITR 383 (SC) AS WELL THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. , (2012) 349 ITR 336 . 4. ON THE OTHER HAND, THE LD. DR APPEARING FOR THE REVENUE DID NOT CONTROVERT THE ASPECT THAT THE RELEVANT FACTS NECESSARY TO ADJUDICATE THE ADDITIONAL GROUND ARE ON RECORD, BUT CONTENDED THAT THE ADDITIONAL GROUND WAS NOT RAISED BY T HE ASSESSEE ORIGINALLY AT THE TIME OF FILING OF THE APPEAL THOUGH SAID ISSUE WAS AGITATED BEFORE THE CIT(A), WHO HAS DECIDED IT AGAINST THE ASSESSEE. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL STANDS WITH RESPECT TO THE ADMISSION OF THE ADDITIONAL GROUND OF APPEAL AND, IN OUR CONSIDERED OPINION, THE SAME DESERVES TO BE ADMITTED. NOTABLY, THE ADDITIONAL GROUND RAISED INVOLVES A POINT OF LAW, WHICH GOES TO T HE JURISDICTION OF THE ASSESSING OFFICER TO MAKE THE IMPUGNED ASSESSMENT, AND SINCE THE FACTS NECESSARY TO ADJUDICATE THE SAME ARE EMERGING FROM THE RECORD AND DO NOT REQUIRE ANY FRESH INVESTIGATION, THE SAME DESERVES TO BE ADMITTED. IT IS ALSO NOTE - WORTH Y THAT BEFORE THE CIT(A), ASSESSEE HAD RAISED A SPECIFIC PLEA ON THE ASPECT OF NON - ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AND THE CIT(A) HAS DECIDED THE ISSUE AFTER OBTAINING A REPORT FROM THE ASSESSING OFFICER, THOUGH HE HAS DECIDED AGAINST THE ASSESSEE . BE THAT AS IT MAY, WE ARE ONLY POINTING OUT THE 4 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. AFORESAID TO BRING OUT THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE DOES NOT INVOLVE A POINT WHICH IS NEW TO THE REVENUE INASMUCH AS AT THE FIRST APPELLATE STAGE, THE ASSESSING OFFICER WAS CONFRONTED ON IT AND A REMAND REPORT WAS ALSO OBTAINED. CONSIDERING THE AFORESAID ASPECTS, WE ADMIT THE ADDITIONAL GROUND FOR ADJUDICATION. THIS ASPECT WAS MADE KNOWN TO THE PARTIES AT THE TIME OF HEARING AND ACCORDINGLY THE RIVAL COUNSELS WERE HEARD ON THE MERITS OF THE SAID GROUND ALSO. 6. BEFORE WE PROCEED TO TAKE - UP THE ISSUE RAISED IN THE ADDITIONAL GROUND OF APPEAL, WE MAY BRIEFLY TOUCH UPON THE BACKGROUND IN WHICH THE PRESENT APPEAL HAS COME UP BEFORE THE TRIBUNAL. IN THIS CASE, ASSESSEE - INDIVIDUAL HAD FILE D RETURN OF INCOME FOR ASSESSMENT YEAR 2002 - 03 ON 29.07.2002, WHICH WAS SUBSEQUENTLY REVISED ON 07.08.2003. THE DISCUSSION IN THE ASSESSMENT ORDER REVEALS THAT THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 29.01.2004, WHICH WAS ALSO REVISED ON 13.05.2004 AN D, IN RESPONSE, ASSESSEE THROUGH A COMMUNICATION DATED 31.05.2004 REQUESTED THAT THE REVISED RETURN FILED ON 07.08.2003 BE TREATED AS A RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. NOTABLY, ASSESSEE IS AN INDIVIDUAL WHO IS DERIVING INCOME FROM SALARY AS A DIRECTOR OF SAF YEAST COMPANY AND ALSO INCOME FROM OTHER SOURCES, ETC. IN THE REVISED RETURN OF INCOME FILED ON 07.08.2003, ASSESSEE HAD, INTER - ALIA , DECLARED INCOME BY WAY OF LONG TERM CAPITAL GAIN ON REDEMPTION OF 1150 DEEP DISCOUNT BO NDS ISSUED BY IDBI IN 1992. THE ASSESSEE HAD DECLARED INCOME BY WAY OF SALE CONSIDERATION OF RS.1,38,00,000/ - , AND AFTER REDUCING THEREFROM THE ORIGINAL PRICE, THE BALANCE OF RS.1,06,95,000/ - WAS DECLARED AS INCOME BY WAY OF LONG TERM CAPITAL GAIN. IN TH IS CONTEXT, THE ASSESSING OFFICER HAS NOT DIFFERED WITH THE ASSESSEE ON THE DETERMINATION OF QUANTUM OF INCOME ON REDEMPTION OF IDBI 5 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. BONDS, BUT ACCORDING TO HIM, SUCH INCOME WAS NOT ASSESSABLE AS CAPITAL GAIN, BUT AS INTEREST INCOME ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES. ACCORDINGLY, IN THE ASSESSMENT FINALISED U/S 143(3) R.W.S. 147 DATED 24.03.2005 , THE AMOUNT OF RS.1,06,95,000/ - HAS BEEN ASSESSED AS INTEREST EARNED ON REDEMPTION OF IDBI BONDS UNDER THE HEAD INCOME FROM OTHER SOURCES. THE REASONS WHICH HAVE PROMPTED THE ASSESSING OFFICER TO DISAGREE WITH THE ASSESSEE ON THE NATURE OF INCOME CAN BE UNDERSTOOD AS FOLLOWS. ORIGINALLY, THE ASSESSEE WAS HOLDING 1150 DEEP DISCOUNT BONDS ISSUED BY IDBI IN 1992, WHICH WAS SUBSCRIBED BY THE AS SESSEES FATHER IN HIS NAME (SINCE ASSESSEE WAS A MINOR AT THAT TIME) @ RS.2,700/ - PER BOND. THE TERMS AND CONDITIONS OF THE ISSUE OF BONDS PROVIDED FOR A PUT AND CALL OPTION AT THE END OF EVERY 5 YEARS FROM THE DATE OF ISSUE, AND THE FINAL MATURITY WAS T O BE ON 31.03.2012. THE VALUE TO BE PAID BY IDBI UPON REDEMPTION OF B OND BEING EXERCISED AT THE END OF EACH OF THE 5 YEAR S BLOCK WAS ALSO SPECIFIED AT THE TIME OF ISSUE. ON 24.12.2001, THE ASSESSEE SOLD HIS 1150 BONDS TO HIS BROTHER, SHRI A.M. M UTHIAH A ND SUCH TRANSFER HAS ALSO BEEN DULY REGISTERED WITH THE IDBI. ON THE SAME DATE, ASSESSEE ACQUIRED 1150 DEEP DISCOUNT BONDS BELONGING TO HIS BROTHER, A TRANSFER WHICH WAS ALSO REGISTERED WITH IDBI. BOTH THE ABOVE TRANSFERS WERE MADE @ RS.12,000/ - PER BOND AMOUNTING TO RS.1,38,00,000/ - . ON 31.03.2002, IDBI PREMATURELY REDEEMED THESE BONDS. NOTABLY, THE AMOUNT PAID BY IDBI ON THE PREMATURE REDEMPTION OF THE BOND WAS ALSO RS.12,000/ - PER EACH BOND , WHICH CORRESPONDED WITH THE AMOUNT AT WHICH ASSESSEE AND HI S BROTHER TRANSACTED WITH EACH OTHER. IN THE REVISED RETURN FILED BY THE ASSESSEE, THE CAPITAL GAIN ON SALE OF THE BONDS WAS COMPUTED AT RS.1,06,95,000/ - , BEING THE DIFFERENCE BETWEEN THE SALE PRICE, I.E. RS. 12,000/ - PER BOND AS REDUCED BY THE ORIGINAL S UBSCRIBED VALUE OF RS.31,05,000/ - . IN THE ASSESSMENT FINALISED BY THE 6 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. ASSESSING OFFICER ON 24.03.2005 , THE ASSESSING OFFICER HELD THAT THE TRANSACTION OF SALE AND PURCHASE OF BONDS EFFECTED BY THE ASSESSEE WITH HIS BROTHER WAS A SHAM TRANSACTION, WHICH WA S DONE WITH THE OBJECTIVE OF ENABLING THE ASSESSEE TO TREAT THE INCOME FROM THE TRANSFER OF BONDS AS CAPITAL GAIN, AND NOT AS INTEREST INCOME BECAUSE IF ASSESSEE WOULD HAVE RECEIVED THE EQUIVALENT PROCEEDS FROM IDBI ON ACCOUNT OF REDEMPTION OF ORIGINALLY HELD BONDS ON MATURITY, THE DIFFERENTIAL WOULD HAVE BEEN TAXED AS INTEREST INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. OSTENSIBLY, LONG TERM CAPITAL GAIN IS ASSESSABLE AT A CONCESSIONAL RATE OF TAX, WHEREAS INTEREST INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES IS LIABLE TO BE TAXED AT THE NORMAL RATE OF TAXATION. THE ASSESSING OFFICER ALSO NOTED THAT THE TDS CERTIFICATE ISSUED BY THE IDBI AT THE TIME OF REDEMPTION ON MATURITY ALSO REFERS TO THE INCOME AS INTEREST INCOME AND, THEREFORE, THE TREATMENT OF SUCH INCOME BY THE ASSESSEE AS CAPITAL GAIN ON THE BASIS OF THE TRANSACTION S EFFECTUATED WITH HIS BROTHER WAS INTENDED TO LOWER THE ULTIMATE TAX LIABILITY. THUS, THE ASSESSING OFFICER ASSESSED THE INCOME AS INTEREST INCOME UNDE R THE HEAD INCOME FROM OTHER SOURCES. IT TRANSPIRES THAT THE SAID ASSESSMENT CAME UP BEFORE THE TRIBUNAL, AND VIDE ITS ORDER IN ITA NO. 774/PN/2006 DATED 15.03.2007, THE MATTER WAS RESTORED BACK TO THE FILE OF THE CIT(A) WITHOUT EXPRESSING ANY OPINION O N THE MERITS OF THE CASE FOR AFRESH ADJUDICATION. IN PURSUANCE TO SUCH AN ORDER OF THE TRIBUNAL DATED 15.03.2007 (SUPRA), THE IMPUGNED ORDER HAS BEEN PASSED BY THE CIT(A), AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 7. NOW, IN THE ABOVE BA CKGROUND, WE MAY FIRST TAKE - UP THE CONTENTIONS RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND TO THE EFFECT THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE 7 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. ACT IS VOID AND ILLEGAL INASMUCH AS IT HAS BEEN PASSED WITHO UT ISSUANCE OF MANDATORY NOTICE REQUIRED TO BE ISSUED U/S 143(2) OF THE ACT. IN SUPPORT OF THE GROUND OF APPEAL, THE LEARNED REPRESENTATIVE REFERRED TO THE ASSESSMENT ORDER AND POINTED OUT THAT NOWHERE IT IS MENTIONED THAT ANY NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUED. IN PARTICULAR, OUR ATTENTION HAS BEEN DRAWN TO POINT (III) IN PARA 6.4 (I) OF THE ASSESSMENT ORDER, WHEREIN A TABULATION HAS BEEN PREPARED BY THE ASSESSING OFFICER REGARDING THE VARIOUS NOTICES/LETTERS/SUMMONS ISSUED DURING THE ASSESSMEN T PROCEEDINGS. ON THE BASIS OF THE SAID TABULATION, THE LEARNED REPRESENTATIVE POINTED OUT THAT NOWHERE DOES IT CONTAIN REFERENCE TO ANY NOTICE ISSUED U/S 143(2) OF THE ACT. THIRDLY, THE LEARNED REPRESENTATIVE ALSO REFERRED TO PAGES 138 - 142 OF THE PAPER BOOK WHEREIN IS PLACED THE CERTIFIED COPY OF THE ORDER SHEET ENTRIES OF THE FILE OF THE ASSESSING OFFICER. ON THIS BASIS, IT IS SOUGHT TO BE DEMONSTRATED THAT THERE IS NO RECORD OF THE ASSESSING OFFICER HAVING ISSUED ANY NOTICE U/S 143(2) OF THE ACT PRIOR TO THE FINALISATION OF THE IMPUGNED ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT. THE LEARNED REPRESENTATIVE POINTED OUT THAT EVEN BEFORE THE CIT(A) WHEN THE SAID POINT WAS RAISED, THERE HAS BEEN NO SPECIFIC ASSERTION BY THE ASSESSING OFFICER IN THE REMAN D PROCEEDINGS. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT CIT(A) HAS ERRONEOUSLY REFERRED TO A COMMUNICATION DATED 23.11.2004 AS BEING A NOTICE PURPORTEDLY ISSUED U/S 143(2) OF THE ACT. IN THIS CONTEXT, THE LEARNED REPRESENTATIVE REFERR ED TO PAGE 7 OF THE PAPER BOOK WHEREIN IS PLACED A COPY OF THE COMMUNICATION OF THE ASSESSING OFFICER DATED 23.11.2004 WHICH , AS PER THE LEARNED REPRESENTATIVE , IS NOT A NOTICE CONTEMPLATED U/S 143(2) OF THE ACT. ACCORDING TO HIM, IT IS ONLY A REPLY TO LE TTER S OF THE ASSESSEE DATED 23.03.2004 AND 31.0 5 .2004 ASKING FOR REASONS FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT. FOR ALL THE SAID REASONS, IT WAS 8 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. THEREFORE CONTENDED THAT IN THIS CASE NOTICE U/S 143(2) OF THE ACT HAS NOT BEEN ISSUED PRIOR TO THE FINALI SATION OF ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT AND, THEREFORE, THE ASSESSMENT WAS VOID AND ILLEGAL. ON THE LEGAL POSITION, RELIANCE HAS BEEN PLACED ON THE FOLLOWING DECISIONS TO CONTEND THAT ISSUANCE OF NOTICE U/S 143(2) OF THE ACT IS MANDATORY BEF ORE COMPLETION OF ASSESSMENT : - I) ASSISTANT COMMISSIONER OF INCOME - TAX VS. HOTEL BLUE MOON, 321 ITR 362 (SC); II) CWT VS. HUF OF H.H. LATE J.M. SCINDIA, 300 ITR 193 (BOM.); III) ASSISTANT COMMISSIONER OF INCOME - TAX VS. GENO PHARMACEUTICALS LTD., [2013] 3 2 TAXMANN.COM 162 (BOMBAY); IV) SAPTHAGIRI FINANCE & INVESTMENTS VS. ITO, [2012] 25 TAXMANN.COM 341 (MAD.); V) CIT VS. RAJEEV SHARMA, 336 ITR 678 (ALLAHABAD); VI) GREATER NOIDA DEVELOPMENT AUTHORITY, 281 CTR 204; VII) RAJ KUMAR CHAWLA VS. ITO, [2005] 94 IT D 1 (DELHI)(SB); VIII) DCIT VS. DHARMPAL SATYAPAL LTD., (2016) 175 TTJ 663 DELHI ITAT; IX) SANTOSH G. SAWANT, ITA NO. 830/MUM/2011 DATED 30.06.2015 ; AND X) M/S. KANCHANJUNGA IMPEX PVT. LTD. VS. ITO, ITA NO. 6057/MUM/2013 DATED 23.09.2015 8. ON THIS ASPECT, THE LD. DR HAS NOT MADE ANY SPECIFIC CONTENTION CONTENDING THAT ANY NOTICE U/S 143(2) OF THE ACT WAS ISSUED, BUT HAS RELIED UPON THE ORDER OF THE CIT(A), ESPECIALLY THE FOLLOWING DISCUSSION : - 9 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. 9.0 IN THE GROUND NO. 2, THE APPELLANT CONTENDED THAT THE A.O HAS NOT ISSUED AND SERVED UPON THE APPELLANT A VALID NOTICE U/S. 143(2) OF THE ACT. IT IS SUBMITTED THAT THE A.O ISSUED NOTICE U/S. 143(2) OF THE ACT DATED 23.11.2004 ASKING THE APPELLANT TO FILE REPLY TO THE NOTICE BY 31.12.2004. THE NOTICE STA TES OF REOPENING OF ASSESSMENT PROCEEDINGS FOR A.Y. 2001 - 02 WHEREAS THE ORDER PASSED IS FOR THE A.Y 2002 - 03. THE APPELLANT, THEREFORE, SUBMITTED THAT AS NOTICE STATING WRONG ASSESSMENT YEAR, THE ORDER PASSED PURSUANCE TO SAID NOTICE IS WITHOUT JURISDICTIO N AND LIABLE TO BE ANNULLED. 10.0 IN RESPONSE TO THE ABOVE SUBMISSION, THE A.O SUBMITTED THE FOLLOWING IN THE WRITTEN SUBMISSIONS : 3. THE ASSESSEE HAS RAISED THE CONTENTION VIDE GROUND NO. 2 THAT THE AO HAS NOT ISSUED AND SERVED UPON THE ASSESSEE A VALID NOTICE U/S. 143(2) OF THE INCOME TAX 1961. THE NOTICE U/S. 148 ISSUED IN PURSUANT TO PROCEEDINGS INITIATED U/S. 147 CLEARLY STATES THA T THE PROCEEDINGS WERE FOR THE A.Y. 2002 - 03. THE NOTICE ISSUED U/S. 148 GIVES THE JURISDICTION TO THE AO OVER THE ASSESSEE IN RESPECT OF THE PROCEEDING INITIATED FOR THE A.Y. 2002 - 03. FURTHER THE GROUND RAISED BY THE ASSESSEE THAT THE NOTICE STATES OF RE OPENING OF ASSESSMENT PROCEEDING FOR A.Y. 2001 - 02 WHEREAS ORDER PASSED FOR A.Y. 2002 - 03. IN THIS CONNECTION IT IS SUBMITTED, THE ASSESSMENT ORDER MENTIONED IN THE REFERRED NOTICE IS A.Y. 2001 - 02 HOWEVER THE FACTS MENTIONED IN THE SAID NOTICE RELATING TO R E - OPENING OF ASSESSMENT PROCEEDING RELATES TO THE A.Y. 2002 - 03. THEREFORE THE MISTAKE COMMITTED DUE TO TYPING ERROR AND INADVERTENCE CANNOT BE THE BASIS OF ORDER TO BE ANNULLED. FURTHER, THE ASSESSEE HAS SUBMITTED THE INFORMATION IN RELATION TO THE SAID NOTICE FOR THE AY 2002 - 03 ONLY. DECISION: 11.0 I HAVE CAREFULLY EXAMINED THE FACTS OF THE CASE, THE STAND TAKEN BY THE A.O IN THE ASSESSMENT ORDER AND THE REMAND REPORT, THE GROUNDS OF APPEAL, THE WRITTEN SUBMISSIONS FILED BY THE APPELLANT DURING THE HE ARING PROCEEDINGS. 10 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. 11.1 THE ABOVE MISTAKE AS POINTED OUT BY THE APPELLANT IS A CURABLE MISTAKE U/S. 292B OF THE ACT SINCE IN SUBSTANCE, THE CONTENTS OF THE NOTICE ISSUED U/S. 143(2) DATED 23.11.2004 RELATES TO THE A.Y 2002 - 03, THOUGH WRONGLY MENTIONED AS A.Y 2001 - 02. THE INTENTION OF THE A.O IS CLEARLY EXPRESSED AS ONE RELATING TO A.Y 2002 - 03 THOUGH MISTAKENLY THE ASSESSMENT YEAR IS MENTIONED AS 2001 - 02. THEREFORE, THE GROUND NO. 2 OF THE APPELLANT IS HEREBY DISMISSED. 9. WE HAVE CAREFULLY CONSIDERED T HE RIVAL SUBMISSIONS. INSOFAR AS THE LEGAL POSITION ON THE POINT CANVASSED BY THE ASSESSEE IS CONCERNED, THE SAME IS QUITE POTENT. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF SAPTHAGIRI FINANCE & INVESTMENTS (SUPRA) WAS CONSIDERING A SIMILAR OBJECTION AND REVENUE CONTENDED THEREIN THAT OMISSION TO ISSUE NOTICE U/S 143(2) OF THE ACT WAS A PROCEDURAL IRREGULARITY AND IT WOULD NOT INVALIDATE THE ASSESSMENT. THE HON'BLE HIGH COURT HELD THAT IN THE ABSENCE OF A NOTICE U/ S 143(2) OF THE ACT, THE ASSESSMENT MADE U/S 148 OF THE ACT COULD NOT BE HELD TO BE VALIDLY MADE. IN COMING TO SUCH CONCLUSION, THE HON'BLE HIGH COURT NOTED THAT EVEN IN A SITUATION WHERE THE MATTER WAS DISCUSSED WITH THE ASSESSEE AND HIS SIGNATURE WAS AF FIXED, IT WOULD NOT MEAN THAT THE PROCEDURE OF NOTICE U/S 143(2) OF THE ACT STOOD COMPLIED WITH OR THAT THE ASSESSEE HAD WAIVED NOTICE. THUS, AS PER THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT, THE ABSENCE OF A NOTICE U/S 143(2) OF THE ACT INVALIDATES E VEN A REASSESSMENT MADE IN PURSUANCE TO SEC. 148 OF THE ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF GENO PHARMACEUTICALS LTD. (SUPRA) HAS ALSO AFFIRMED THE SAME LEGAL POSITION TO THE EFFECT THAT ISSUANCE OF NOTICE U/S 143(2) OF THE ACT IS MANDATORY, AND IN THE ABSENCE OF THE SAME, THE ASSESSING OFFICER CANNOT PROCEED TO MAKE AN INQUIRY ON THE RETURN FILED IN PURSUANCE TO NOTICE ISSUED U/S 148 OF THE ACT. THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE 11 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. MOON (SUPRA) ALSO HELD THAT THE PRESCRIBED N OTICE U/S 143(2) OF THE ACT HAS TO BE ISSUED WITHIN THE PERIOD PRESCRIBED THEREOF IN ORDER TO MAKE AN ASSESSMENT. THOUGH THE JUDGMENT OF THE HON'BLE SUPREME COURT WAS IN THE CONTEXT OF A BLOCK ASSESSMENT MADE U/S 158BC OF THE ACT, BUT WHAT IS OF IMPORTANC E TO NOTE IS THAT THE HON'BLE SUPREME COURT HAS EMPHASISED ON ADHERENCE TO THE PERIOD PRESCRIBED IN THE PROVISO TO SEC. 143(2) OF THE ACT FOR ISSUANCE OF NOTICE PRIOR TO ASSESSMENT. IN OUR CONSIDERED OPINION, THE SAID RATIO IS FULLY ATTRACTED IN THE INSTA NT CASE TOO. OTHER DECISIONS WHICH HAVE BEEN RELIED UPON BY THE ASSESSEE BEFORE US ALSO ARE ON THE SAME FOOTING AND PRESCRIBE THAT NOTICE U/S 143(2) OF THE ACT IS MANDATORY, AND IN THE ABSENCE OF THE SAME, THE RESULTANT ASSESSMENT CANNOT BE CONSTRUED TO B E A VALID ASSESSMENT. 10. IN THE AFORESAID BACKGROUND, WE MAY NOW COME TO THE FACTS OF THE INSTANT CASE. THE CONTENTION OF THE ASSESSEE IS THAT PRIOR TO FINALISATION OF THE ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT DATED 24.03.2005 , THE ASSESSING OFFIC ER DID NOT ISSUE THE MANDATORY NOTICE U/S 143(2) OF THE ACT. FIRSTLY, OUR ATTENTION HAS BEEN DRAWN TO THE TABULATION IN THE ASSESSMENT ORDER ITSELF, WHICH DOES NOT CONTAIN REFERENCE TO ANY NOTICE ISSUED U/S 143(2) OF THE ACT. THE SAME IS ALSO EMERGING FR OM A PERUSAL OF THE CERTIFIED COPY OF THE ORDER SHEET ENTRIES, WHICH HAS BEEN PLACED IN THE PAPER BOOK AT PAGES 138 - 142. NOW, IN THE ORDER OF THE CIT(A), A REFERENCE HAS BEEN MADE TO A COMMUNICATION DATED 23.11.2004 AS BEING NOTICE ISSUED U/S 143(2) DATE D 23.11.2004 RELATES TO THE A.Y 2002 - 03, THOUGH WRONGLY MENTIONED AS A.Y 2001 - 02 . THE SAID AVERMENT OF THE CIT(A) HAS BEEN CONTESTED BY THE ASSESSEE BEFORE US BY REFERRING TO THE COPY OF THE SAID COMMUNICATION, WHICH IS PLACED AT PAGE 7 OF THE PAPER BOOK . WE HAVE EXAMINED THE SAID 12 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. COMMUNICATION DATED 23.11.2004 AND DO NOT FIND THE SAME TO HAVE BEEN ISSUED IN THE CONTEXT OF SEC. 143(2) OF THE ACT. THE CONTENTS OF THE SAID COMMUNICATION ADDRESSED TO THE ASSESSEE BY THE ASSESSING OFFICER HAVE BEEN PERUSED BY US. FIRSTLY, IT REFERS TO THE SOME OFFICE NOTE ISSUED U/S 148 OF THE ACT ON 29.01.2004 IN RESPONSE TO WHICH ASSESSEE IS STATED TO HAVE FILED LETTER DATED 23.03.2004 SEEKING EXTENSION OF TIME FOR FILING REPLY. SECONDLY, IT REFERS TO THE REVISED NOTICE U/S 148 DATED 13.05.2004, IN RESPONSE TO WHICH ASSESSEE IS STATED TO HAVE FILED LETTER DATED 31.05.2004 ASKING FOR REASONS FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT. AFTER MAKING THE AFORESAID AVERMENTS, THE SAID COMMUNICATION ADDRESSE S TO THE ASSESSEE , A COPY OF THE REASONS RECORDED BEFORE ISSUING NOTICE U/S 148 OF THE ACT ; THE REASONS RECORDED BY THE ASSESSING OFFICER HAVE BEEN EXTRACTED IN THIS COMMUNICATION . IN THE END, ASSESSEE HAS BEEN REQUESTED TO FILE EXHAUSTIVE/ELABORATE REPLY OR BY FILING AN I.T RETURN AS EARLY AS POSSIBLE, PREFERABLY BY 03.12.2004. THE CONTENTS OF THE SAID COMMUNICATION THOUGH REFERRING TO ASSESSMENT YEAR 2001 - 02 (WHICH IS APPARENTLY A MISTAKE SINCE THE CORRECT ASSESSMENT YEAR IS 2002 - 03), DO NOT JUSTIFY THE ASSERTION OF THE CIT(A) THAT IT IS A NOTICE U/S 143(2) OF THE ACT. IN FACT, NO EFFORT HAS BEEN MADE BY THE CIT(A) OR EVEN BY THE ASSESSING OFFICER IN HIS REMAND REPORT TO THE CIT(A), WHICH HAS BEEN REPRODUCED BY HIM, TO EXPLAIN AS TO HOW AND UNDER WHAT CIRCUMSTANCES THE SAID COMMUNICATION IS TO BE UNDERSTOOD AS A NOTICE ISSUED U/S 143(2) OF THE ACT. THEREFORE, FACTUALLY SPEAKING, IT IS INDEED A CASE WHERE NO NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUED BEFORE FINALISATION OF ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT DA TED 24.03.2005 . IN THE CONTEXT OF THE COMMUNICATION DATED 23.11.2004, WE HAVE ALSO PERUSED THE ORDER SHEET ENTRIES MADE BY THE ASSESSING OFFICER, WHICH READS AS UNDER : - 13 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. 23.11.2004 LETTER SENT TO A.M. MUTHU GIVING REASONS RECORDED FOR ISSUE OF NOTICE U/ S 148 AND ASKING TO FILE EXHAUSTIVE REPLY BY 03.12.2004. THE AFORESAID ALSO REINFORCES THE INFERENCE THAT THE SAID COMMUNICATION HAS NOT BEEN LOOKED UPON AS NOTICE ISSUED U/S 143(2) OF THE ACT BY THE ASSESSING OFFICER AND, THEREFORE, IT WOULD BE APPROPRI ATE TO DEDUCE THAT IN THE INSTANT CASE NO NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUED PRIOR TO ASSESSMENT DATED 24.03.2005 (SUPRA). 11. BEFORE CONCLUDING ON THIS ASPECT, WE MAY ALSO REFER TO ANOTHER PLEA OF THE REVENUE, WHICH HAS ALSO BEEN REFERRED BY THE CIT(A) AS A MATTER OF PASSING IN PARA 11.1 OF HIS ORDER. AS PER THE REVENUE, NON - ISSUANCE OF A NOTICE U/S 143(2) OF THE ACT IS A PROCEDURAL DEFECT WHICH IS CURABLE IN TERMS OF SEC. 292B OF T HE ACT. IN OUR CONSIDERED OPINION, AS HAS BEEN FOUND BY US ON THE EXAMINATION OF THE CONTENTS OF THE COMMUNICATION DATED 23.11.2004 IN THE EARLIER PARAS, IT COULD NOT BE SAID THAT THE SAME IS IN SUBSTANCE AND EFFECT A NOTICE U/S 143(2) OF THE ACT. THE SA ID COMMUNICATION MERELY SEEKS TO REPLY TO THE COMMUNICATIONS OF THE ASSESSEE SEEKING REASONS RECORDED FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT AND NO FURTHER. THUS, THE STAND OF THE CIT(A) AS WELL AS THAT OF THE REVENUE BEFORE US , ON THE BASIS OF SEC. 29 2B OF THE ACT , IS NOT JUSTIFIED. 12. SEC. 292BB OF THE ACT HAS ALSO BEEN PRESSED INTO SERVICE BY THE REVENUE , WHICH PRESCRIBES THAT W HERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR CO - OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR 14 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. REASSESSMENT, I T SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION I N ANY PROCEEDING OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. WITH REFERENCE TO SEC. 292BB OF THE ACT, THE STAND OF THE ASSESSEE BEFORE US IS THAT THE SAID SECTION DOES NOT COVER CASES WHERE MANDATORILY REQUIRED NOTICE HAS NOT BEEN ISSUED AT ALL. FOR THE SAID PROPOSITION, RELIANCE H AS BEEN PLACED ON THE FOLLOWING JUDGMENTS : - I) PR. COMMISSIONER OF INCOME - TAX VS. SILVER LINE, 383 ITR 455 (DELHI); II) PR. COMMISSIONER OF INCOME - TAX VS. SHRI JAI SHIV SHANKAR TRADERS (P.) LTD., 383 ITR 448 (DELHI); III) AMITI SOFTWARE TECHNOLOGIES PVT. LTD., ITA NO. 540/BANG/2012 DATED 07.02.2014; AND IV) TRAVANCORE DIAGNOSTICS (P.) LTD. VS. ACIT, 390 ITR 167 (KERALA) 13. NOTABLY, THE HON'BLE DELHI HIGH COURT IN THE CASE OF SILVER LINE (SUPRA) WAS CONSIDERING WHETHER THE FAILURE BY THE ASSESSING OFFICE R TO ISSUE NOTICE U/S 143(2) OF THE ACT WAS FATAL TO THE REASSESSMENT PROCEEDINGS FINALISED U/S 147/148 OF THE ACT. THE DEFENCE OF THE REVENUE WAS BASED ON THE PROVISIONS OF SEC. 292BB OF THE ACT BY POINTING OUT THAT ASSESSEE HAD CO - OPERATED AND PARTICIPA TED IN THE ASSESSMENT PROCEEDINGS AND, THEREFORE, IT WAS PRECLUDED FROM RAISING AN OBJECTION WITH RESPECT TO NON - ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. THE HON'BLE HIGH COURT RELIED UPON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF P ARIKALPANA ESTATE DEVELOPMENT (P.) LTD., 40 TAXMAN.COM 248 (ALL) AS WELL AS ITS EARLIER 15 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. JUDGMENT IN THE CASE OF SHRI JAI SHIV SHANKAR TRADERS (P.) LTD. (SUPRA) AND MADE A DISTINCTION BETWEEN A FAILURE TO ISSUE NOTICE AND A FAILURE TO SERVE A NOTICE ON THE ASSESSEE, AND HELD THAT SEC. 292BB OF THE ACT APPLIES INSOFAR AS THE FAILURE OF SERVICE OF NOTICE IS CONCERNED, AND NOT WITH REGARD TO FAILURE TO ISSUE NOTICE. IN OTHER WORDS, AS PER THE HON'BLE HIGH COURT, THE FAILURE OF THE ASSESSING OFFICER, IN REASSESSMENT PROCEEDINGS U/S 147/148 OF THE ACT, TO ISSUE NOTICE U/S 143(2) OF THE ACT PRIOR TO FINALISATION OF REASSESSMENT ORDER CANNOT BE CONDONED ON THE STRENGTH OF SEC. 292BB OF THE ACT. TO THE SIMILAR EFFECT IS THE JUDGMENT OF THE HON'BLE KERALA H IGH COURT IN THE CASE OF TRAVANCORE DIAGNOSTICS (P.) LTD. (SUPRA), AND CONSIDERING THE AFORESAID JUDICIAL RULINGS , IN OUR VIEW, THE RELIANCE PLACED BY THE REVENUE ON SEC. 292BB OF THE ACT IN THE INSTANT CASE IS MISPLACED. 14. IN VIEW OF THE AFORESAID DISC USSION, AND IN THE BACKGROUND OF THE FACT THAT THE ASSESSING OFFICER HAD FAILED TO ISSUE NOTICE U/S 143(2) OF THE ACT BEFORE FINALISING THE REASSESSMENT PROCEEDINGS, THE IMPUGNED ASSESSMENT IS ILLEGAL AND UNSUSTAINABLE AND IS HEREBY DIRECTED TO BE QUASHED. SINCE WE HAVE HELD THE ASSESSMENT ORDER ITSELF TO BE ILLEGAL AND UNSUS TAINABLE, THE OTHER GROUNDS RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL REPRODUCED ABOVE , ARE RENDERED ACADEMIC AND ARE NOT BEING ADJUDICATED FOR THE PRESENT. 15. THUS, INSOFAR AS APPEAL OF ASSESSEE IN ITA NO. 1105/MUM/2014 IS CONCERNED, THE SAME IS HERE BY ALLOWED, AS ABOVE. 16. NOW, WE MAY TAKE - UP THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 1106/MUM/ 2014 , WHICH IS DIRECTED AGAINST THE ORDER OF CIT(A) - 38, MUMBAI 16 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. DATED 28.11.2013 PERTAINING TO THE ASSESSMENT YEAR 2002 - 03 , WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 27.11.2008 PASSED BY THE ASSESSING OFFICER U/S 153A R.W.S. 143(3) OF T HE INCOME TAX ACT, 1961. 17. THE SAID ASSESSMENT HAS BEEN MADE IN PURSUANCE TO A SEARCH ACTION CARRIED OUT ON THE ASSESSEE U/S 132(1) OF THE ACT DATED 30.11.2006. THE ASSE SSING OFFICER NOTES THAT IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT, ASSESSEE FILED HIS RETURN OF INCOME DECLARING INCOME OF RS.1,20,28,255/ - , WHICH WAS THE SAME AS DECLARED IN THE REVISED RETURN FILED ON 07.08.2003 DECLARING TOTAL INCOME OF RS.1 ,20,28,255/ - . IN THE ENSUING ASSESSMENT FINALISED U/S 153A R.W.S. 143(3) OF THE ACT DATED 27.11.2008, THE TOTAL INCOME HAS BEEN DETERMINED AT RS.1,20,28,255/ - , WHICH WAS THE SAME AS THE INCOME DETERMIN ED IN THE REASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT DATED 24.03.2005 (SUPRA) , WHICH HAS BEEN DEALT WITH BY US IN THE EARLIER PARAS. THOUGH THERE WAS NO DIFFERENCE BETWEEN THE ASSESSED AND THE RETURNED INCOME, THE ONLY DIFFERENCE WAS THAT THE INCOME FROM THE BONDS OF RS.1,06,95,000/ - DECLARED BY THE ASSESSEE AS CAPITAL GAIN HAS BEEN ASSESSED AS INCOME FROM OTHER SOURCES IN CONSONANCE WITH THE ORDER EARLIER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT DATED 24.03.2005 (SUPRA). THIS HAS BEEN AFFIRMED BY THE CIT(A), AGAINST W HICH ASSESSEE IS IN APPEAL BEFORE US. 18. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT OUR DECISION IN THE APPEAL OF ASSESSEE IN ITA NO. 1105/MUM/ 2014 , WHICH RELATED TO THE ASSESSMENT MADE BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT DATED 24.03.2005 (SUPRA) , WOULD ALSO BE RELEVANT FOR THIS APPEAL ALSO INASMUCH AS THE ASSESSING OFFICER WOULD BE REQUIRED TO MAKE THE 17 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. COMPUTATION IN THE IMPUGNED ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT IN CONSONANCE WITH THE ASSESSMENT DATED 24.03.2005 (SUPRA) . 19. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE INCOME IN THE IMPUGNED ASSESSMENT IN CONSONANCE WITH OUR ORDER IN THE APPEAL OF THE ASSESSEE IN ITA NO. 1105/MUM/2014 AGAINST O RDER OF ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT IN THE EARLIER PARAS. THUS, ASSESSEE SUCCEEDS IN THIS APPEAL ALSO. 20. NOW, WE MAY REFER TO THE APPEAL IN ITA NO. 1101/MUM/2014, WHICH IS IN THE CASE OF ASSESSEES BROTHER, SHRI A.M. MUTHIAH. TH E SAID APPEAL IS DIRECTED AGAINST THE ORDER OF CIT(A) - 38, MUMBAI DATED 29.11.2013 PERTAINING TO THE ASSESSMENT YEAR 2002 - 03 , WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 24.03.2005 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF T HE INCOME TAX AC T, 1961. 21. AT THE TIME OF HEARING, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE FACTS AND CIRCUMSTANCES AND THE ISSUES RAISED IN THIS APPEAL ARE IDENTICAL TO THOSE CONSIDERED BY US IN THE APPEAL OF ASSESSEES BROTHER IN ITA NO. 1105/MUM/ 2014 IN TH E EARLIER PARAS. IT WAS ALSO A COMMON POINT BETWEEN THE PARTIES THAT IN THIS APPEAL ALSO THE ADDITIONAL GROUND OF APPEAL RELATING TO NON - ISSUANCE OF NOTICE U/S 143(2) OF THE ACT PRIOR TO FINALISATION OF THE ASSESSMENT STANDS ON IDENTICAL FOOTING AS CONSID ERED BY US IN THE APPEAL OF ASSESSEES BROTHER IN ITA NO. 1105/MUM/ 2014 IN THE EARLIER PARAS. THEREFORE, UNDER THESE CIRCUMSTANCES, OUR DECISION IN ITA NO. 1105/MUM/ 2014 APPLIES MUTATIS MUTANDIS IN THIS APPEAL ALSO. ACCORDINGLY, THE APPEAL OF THE ASSESSE E IS ALSO ALLOWED ON THE SAME TERMS AS THE APPEAL 18 ITA NOS. 1101, 1105 & 1106/MUM/2014 A.M. MUTHIAH & ANR. OF ASSESSEES BROTHER IN ITA NO. 1105/MUM/ 2014 IS ALLOWED BY US IN THE EARLIER PARAS. 22. RESULTANTLY, THE CAPTIONED APPEALS ARE ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 T H DECEMBER, 2017. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 1 1 T H DECEMBER , 201 7 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI