Kamlesh H Shah(HUF) , Bangalore V. The Income Tax Officer Ward-6(3)(2), Bangalore

ITA 1626/BANG/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8657 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Keywords: Principle of natural justice; Question of law; Accommodation entries
• Section: 143(3); 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO . 1 626 /BANG/201 8 ASSESSMENT YEAR : 2008 - 09 M/S. KAMLESH H SHAH (HUF), E-201, RENAISSANCE TEMPLE BELL, 25/1, INDUSTRIAL SUBURB, YESHWANTPUR, BANGALORE 560 022. PAN: AAEHK0217R VS. THE INCOME TAX OFFICER, WARD 6 (3) (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SMT. SUMAN LUNKAR, CA RESPONDENT BY : SMT. PADMA M EENAKSHI, JCIT (DR) DATE OF HEARING : 0 6 . 1 2 .2018 DATE OF PRONOUNCEMENT : 21. 1 2 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THEORDER OF LD. CIT (A)-7, BANGALORE DATED 02.04.20 18 FOR ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEEARE AS UNDER. 1. THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSI NG THE ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE SAME. THE IMPUGNED ORDERS BEING BAD IN LAW, VOID AB-INITIO ARE REQUIRED TO BE QUASHED. 2.1 IN ANY CASE, THE CONDITIONS PRECEDENT FOR THE I SSUE OF NOTICE U/S. 148 OF THE ACT BEING ABSENT, THE RE-OPENING OF ASSE SSMENT BECOMES BAD IN LAW AND CONSEQUENTLY THE ORDER AS PASSED/CONFIRMED BEING ALSO BAD IN LAW IS REQUIRED TO BE QUASHED. 2.2 IN ANY CASE THE ASSESSING OFFICER HAVING NOT CO MPLIED WITH LEGAL PROVISIONS / PROCEDURE FOR REOPENING / REASSESSMENT , THE CONSEQUENTIAL ORDER BECOMES BAD IN LAW AND LIABLE T O BE QUASHED. 2.3 IN ANY CASE, NON FURNISHING OF REASONS RECORDED FOR RE OPENING IN SPITE OF SEVERAL REQUESTS RENDERS THE RE ASSESSMENT BAD IN LAW AND SUCH AN ORDER IS LIABLE TO BE QUASHED. 2.4 IN ANY CASE, THE FINDING OF THE AUTHORITIES BEL OW THAT THE REASONS FOR RE OPENING WERE GIVEN VIDE LETTER DATED 05/02/2 015 IS WHOLLY ERRONEOUS AND SUCH FINDING IS TO BE REJECTED. 2.5 IN ANY CASE, THE RE-OPENING OF ASSESSMENT MEREL Y ON THE BASIS OF THIRDPARTY INFORMATION AND NOT BASED ON INDEPENDENT /ENQUIRY APPLICATION OF MIND BY THE ASSESSING OFFICER RENDER S THE ASSESSMENT ITA NO. 1626/BANG/2018 PAGE 2 OF 7 BAD IN LAW AND SUCH AN ORDER IS LIABLE TO BE QUASHE D 3. IN ANY CASE, THE NON SERVICE OF NOTICE U/S 143(2 ) OF THE ACT MAKES THE ENTIRE ASSESSMENT NULL AND VOID AND THE LEARNED CIT (A) INSTEAD OF QUASHING THE ORDER IN TOTO HAS ERRED IN CONFIRMING THE SAME. THE ORDERS AS PASSED BEING VOID AB INITIO AND SUCH ORDE RS ARE LIABLE TO BE QUASHED. 4.1 IN ANY CASE THE ORDER PASSED IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY, ESPECIALLY IN THE AB SENCE OF THE CROSS EXAMINATIONS OF THE PERSONS WHOSE AVERMENTS ARE SOU GHT TO BE RELIED UPON BY THE ASSESSING OFFICER WHILE PASSING THE ORD ER, MAKES THE ORDER TOTALLY BAD IN LAW AND LIABLE TO BE CANCELLED . 4.2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS INSTEAD OF QUASHING THE ILK IMPUGNED ORDER, HAS JUST CONFIRMED THE ORDER OF ASSESSING OFFICER WITHOUT PROPERLY CONSIDERING THE FACT AND CIRCUMSTANCES OF THE CASE, ARGUMENTS OF THE APPELLA NT AND THE LAW APPLICABLE. 4.3 IN ANY CASE AND WITHOUT PREJUDICE, THE ORDERS P ASSED BY THE AUTHORITIES BELOW BEING CONTRARY TO BINDING DICTUM OF THE JURISDICTIONAL HIGH COURT ARE BAD IN LAW AND ARE LI ABLE TO BE QUASHED. 5. THE ASSESSING OFFICER HAD IN ANY CASE, ERRED IN TREATING A SUM OF RS.14,75,096/- BEING LONG TERM CAPITAL GAIN EARNED ON SALE OF SHARES AS 'INCOME FROM OTHER SOURCES' AND THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE SAME. THE ACTION OF AUTHORITIES BELOW HAS NO SUPPORT IN LAW; IS CONT RARY TO FACTS AND EVIDENCE AVAILABLE AND THEREFORE DESERVES TO BE REJ ECTED. 6.1 IN ANY CASE AND WITHOUT FURTHER PREJUDICE, THE AUTHORITIES BELOW HAVE ERRED IN: A) TAXING/ CONFIRMING THE LONG TERM CAPITAL GAIN EA RNED ON SALE OF SHARES AS INCOME UNDER THE HEAD INCOME FROM OTHER S OURCES. B) NOT CONSIDERING THE FACT THAT THE APPELLANT HAD EARNED LONG TERM CAPITAL GAIN(STT SUFFERED) ON SALE OF SHARES AND SU CH GAIN WAS ELIGIBLE FOR EXEMPTION U/S 10(38) OF THE ACT. C) HOLDING WITHOUT BASIS THAT THE TRANSACTIONS IN S HARES ARE FRAUDULENT D) ALLEGING WITHOUT ANY BASIS THAT THE APPELLANT HA S OBTAINED ACCOMMODATION ENTRIES AND APPELLANT'S OWN MONEY COM E BACK IN THE GUISE OF CAPITAL GAINS. THE CONCLUSIONS / OBSERVATIONS OF AUTHORITIES BELOW BEING TOTALLY ERRONEOUS AND WITHOUT BASIS BOTH ON FACTS A ND LAW IS TO BE DISREGARDED. 6.2 THE SEVERAL OBSERVATIONS MADE AND VARIOUS CONCL USIONS DRAWN BY THE LOWER AUTHORITIES IN THE COURSE OF ORDER ARE WI THOUT BASIS AND EVIDENCE AND ARE MADE/DRAWN ON SURMISES, PROBABILIT IES AND CONJECTURES. SUCH OBSERVATIONS AND CONCLUSIONS BY Q UASI-JUDICIAL AUTHORITIES HAVE NO SUPPORT IN LAW AND DESERVE TO B E REJECTED IN TOTO. 6.3 IN ANY CASE, THE LEARNED CIT(A) HAS ERRED IN MA KING OBSERVATIONS THAT: I) THE COPY OF THE STATEMENT OF SRI MUKESH CHOKSI W AS GIVEN TO THE APPELLANT FOR REBUTTAL. II) THE TRANSACTIONS DONE WERE NOT THROUGH ACCREDIT ED BROKERS. THE OBSERVATIONS OF CIT (A) BEING WHOLLY ERRONEOUS ON FACTS, WITHOUT ITA NO. 1626/BANG/2018 PAGE 3 OF 7 ANY BASIS AND SUCH OBSERVATIONS ARE TO BE REJECTED. 7. THE APPELLANT HAD ACTUALLY SOLD SHARES THROUGH D EMAT ACCOUNT AND HAD EARNED CAPITALGAIN THEREON AND SAME NEEDS TO BE ACCEPTED AS SUCH. 8. THE APPELLANT DENIES THE LIABILITY TO PAY INTERE ST. THE INTEREST HAVING BEEN LEVIED ERRONEOUSLY IS TO BE DELETED. 9. IN VIEW OF THE ABOVE AND OTHER GROUNDS TO BE ADD UCED AT THE TIME OF HEARING, IT IS REQUESTED THAT THE IMPUGNED ORDER BE QUASHED OR AT LEAST THE INCOME FROM LONG TERM CAPITAL GAIN EARNED ON SA LE OF SHARES AS RETURNED BY THE APPELLANT BE ACCEPTED, THE ASSESSME NT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES AS INCOME FROM OTHER SOURCES BE DELETED AND THEINTEREST LEVIED BE ALSO DELETED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT IN THE PRESENT CASE, NO NOTICE U/S. 143(2) WAS ISSUED AND SERVED O N THE ASSESSEE WITHIN THE PRESCRIBED TIME. IN THIS REGARD, SHE DRAWN MY ATTE NTION TO PARA NO. 5.3 TO 5.5 OF THE ORDER OF CIT(A) AND SUBMITTED THAT AS PER TH ESE PARAS, IT CAN BE SEEN THAT BEFORE CIT(A), THE ASSESSEE HAS PLACED RELIANC E ON THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ACIT & A NR. VS. HOTEL BLUE MOON AS REPORTED IN [2010] 321 ITR 362. BUT THE LD. CIT (A) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BY FOLLOWING THE JUDGEMENT OF HONBLE KERALA HIGH COURT RENDERED IN THE CASE OF PADINJAREKARA AGENCIE S (P.) LTD. VS. CIT AS REPORTED IN [2017] 85 TAXMANN.COM 129 (KERALA). SH E SUBMITTED THAT THERE IS NO DISPUTE ON THE FACT THAT THE NOTICE AS REQUIRED U/S. 143(2) WAS NOT ISSUED AND SERVED ON THE ASSESSEE WITHIN THE PRESCRIBED TI ME. SHE SUBMITTED THAT THEREFORE, AS PER THIS JUDGEMENT OF HONBLE APEX CO URT RENDERED IN THE CASE OF ACIT &ANR. VS. HOTEL BLUE MOON (SUPRA), IT SHOUL D BE HELD THAT THE PRESENT ASSESSMENT ORDER IS BAD IN LAW. AS AGAINST THIS, T HE LD. DR OF REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. SHE ALS O SUBMITTED COPY OF LETTER DATED 05.02.2015 ISSUED BY THE AO TO THE ASSESSEE A ND SUBMITTED THAT IT IS STATED IN THIS LETTER BY THE AO THAT NOTICE U/S. 14 3(2) AND 142(1) AND A HEARING NOTICE GIVING AN OPPORTUNITY U/S. 144 IS ENCLOSED. AT THIS JUNCTURE, THE BENCH WANTED TO SEE THE SAID NOTICE U/S. 143(2) STATED BY THE AO AS ENCLOSED WITH LETTER DATED 05.02.2015 ISSUED BY THE AO TO THE ASS ESSEE. IN REPLY, IT WAS SUBMITTED BY LD. DR OF REVENUE THAT THE SAID NOTICE IS NOT READILY AVAILABLE. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, I REPRODUCE THE RELEVANT PARAS FROM THE ORDER OF CIT(A) BEING PARA NOS. 5.3 TO 5.5 AS PER WHICH THIS ISSUE WAS DECIDED BY CIT(A). THE SAME ARE AS UNDER . ITA NO. 1626/BANG/2018 PAGE 4 OF 7 5.3 THE APPELLANT HAS RAISED GROUND CONTENDING THAT THE PROCEEDINGS UNDER SECTION 147 AND THE ORDER PASSED UNDER SECTIO N 143(3) WITHOUT ISSUE OF NOTICE IN TIME UNDER SECTION 143(2) ARE IN VALID, BAD IN LAW AND LIABLE TO BE QUASHED. HE HASCITED A NUMBER OF J UDICIAL DECISIONS INCLUDING THE DECISION OF THE [TAT, BANGALORE AND H ONORABLE SC IN THE CASE OF HOTEL BLUE MOON [2010] 321 ITR 362. THE SUBMISSIONS OF THE APPELLANT HAVE DULY BEEN CONSIDERED. THE AO ISS UED NOTICE U/S 148 OF THE ACT ON 29-03-2014 AFTER RECORDING THE REASON S FOR THE SAME AND AFTER OBTAINING DUE APPROVAL FROM THE RANGE HEAD. T HE ASSESSEE HAS ACKNOWLEDGE THE RECEIPT OF NOTICE U/S 148 VIDE HIS LETTER DATED 07-04- 2014 TO THE AO IN WHICH HEHAS INFORMED ABOUT CHANGE OF HISADDRESS. FURTHER, THEASSESSEEREQUESTEDFOR REASONS RECORDED W HICH WAS PROVIDED BY THE AO ON 05-02-2015. SUBSEQUENTLY, THE ASSESSEE FILED THE RETURN OF INCOME ON 07-05-2014. IT IS NOTED THA T THE ASSESSEE HAD NOT FILED THE RETURN OR INCOME FOR THE AY 2007-08 A ND THE RETURN WAS ONLY FILED AFTER RECEIVING THE NOTICE U/S 148. SUBS EQUENTLY, NOTICES HAVE BEEN ISSUED BY THE AO AND IN COMPLIANCE OF WHI CH THE ASSESSEE HAS FILED DETAILS AND SUBMISSIONS AND HAS APPEARED ON DIFFERENT DATES BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. 5.4 THE PURPOSE-OF ISSUING NOTICE U/S 143(2) IS THA T THE ASSESSEE IS GIVEN AN OPPORTUNITY TO PRODUCE ANY EVIDENCE AND DE TAILS ON WHICH IT MAY RELY IN SUPPORT OF THE RETURN OF INCOME FILED B Y IT. HOWEVER, IN THE CASE OF THE APPELLANT IT IS APPARENT THAT THE AO HA S GIVEN DUE OPPORTUNITY TO THE ASSESSEE AND HAS ISSUED NOTICES AND HAS ALSO PROVIDED THE REASONS RECORDED TO THE ASSESSEE. THE ASSESSEE HAS FILED LETTERS AND SUBMISSIONS BEFORE THE AO AND HAS PARTI CIPATED IN THE ASSESSMENT PROCEEDINGS. IT IS SEEN THAT THE APPELLA NT HAS ACKNOWLEDGED THE RECEIPT OF NOTICE U/S 148 VIDE LET TER FILED BEFORE AO ON 07-04-2014. VIDE ANOTHER LETTER FILED ON THE SAM E DATE, THE APPELLANT HAS REQUESTED FOR EXTENSION OF TIME OF 30 DAYS TO FILE HIS RETURN OF INCOME. FURTHER, IN REPLY TO NOTICE OF TH E AO DATED 05-02- 2015, THE APPELLANT VIDE LETTER DATED 06-02-2015HAS REQUESTED FOR ADJOURNMENT OF ONE WEEK OF THE HEARING FIXED ON 12- 02-2015 DUE TO HIS TRAVEL OUT OF TOWN. FURTHER, VIDE LETTER DATED 19-02-2015, THE APPELLANT HAS REQUESTED FOR TIME TO FILE THE WRITTE N SUBMISSION. THUS, IT IS OBSERVED THAT THE APPELLANT HAS BEEN GIVEN ADEQU ATE OPPORTUNITY TO MAKE HIS REPRESENTATION BEFORE THE AO. THEREFORE, I T CANNOT .BE SAID THAT FAILURE ON THE PART OF THE AO TO MENTION ANY O F THE NOTICE AS ISSUED UNDER SECTION 143(2) HAS DEPRIVED THE APPELL ANT ANY OPPORTUNITY TO FURNISH ANY DETAILS OR EVIDENCE BEFO RE THE AO. A SIMILAR SITUATION WAS DEALT BY THE HONORABLE KERALA HC IN T HE CASE OF PADINJAREKARA AGENCIES (P) LTD 85 TAXMANN.COM 129 W HERE, AFTER CONSIDERING THE DECISION IN THE CASE OF BLUE MOON ( SUPRA), IT HAS BEEN HELD THAT WHEN VARIOUS NOTICES WERE ISSUED TO THE A SSESSEE AND IT WAS GRANTED A PROPER OPPORTUNITY OF HEARING, MERE OMISS ION TO MENTION SECTION 143(2) LITERALLY IN ANY ONE OF NOTICES SO I SSUED WOULD NOT INVALIDATE ASSESSMENT ORDER. THE RELEVANT PART OF T HE DECISION OF THE HONORABLE HC IS REPRODUCED BELOW: 9. SECTION 147 OF THE INCOME TAX ACT PROVIDES FOR A SSESSMENT OF ITA NO. 1626/BANG/2018 PAGE 5 OF 7 INCOME ESCAPING ASSESSMENT. SUCH ASSESSMENT HAS TO BE IN TERMS OF SECTION 148, WHICH PROVIDES FOR RECORDING OF REASON S AND ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. THIS SE CTION, INTER ALIA, PROVIDE THAT BEFORE MAKING AN ASSESSMENT, REA SSESSMENT OR RE-COMPUTATION UNDER SECTION 147, THE ASSESSING OFF ICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FUR NISH A RETURN OF HIS INCOME WHICH IS ASSESSABLE UNDER THE ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR AND THAT THE PROVISIONS OF THE ACT SHALL SO FAR AS MAY BE APPLIE D ACCORDINGLY AS IF SUCH A RETURN WHERE SUCH A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. IN THE CONTEXT OF THE ASSESSMENT UNDER SECTION 147 COURTS HAVE TAKEN THE VIEW THAT NOTICE UNDER SECTIO N 147(2) IS REQUIRED TO BE ISSUED TO THE ASSESSEE. SEE IN THIS CONNECTION, THE JUDGMENT OF THE DELHI HIGH COURT IN ALPHINE ELECTRO NICS ASIA PTE LTD. V. DIRECTOR GENERAL OF INCOME TAX AND OTHERS [ 2012] 341 ITR 247 VIDE PARAGRAPH 24 THEREOF. 10. SECTION 143(2) SHOWS THAT THE PURPOSE OF ISSUIN G A NOTICE THEREUNDER IS TO REQUIRE THE ASSESSEE TO PRO DUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASS ESSEE MAY RELY, IN SUPPORT OF THE RETURN FILED BY HIM. TH AT A NOTICE UNDER SECTION 143(2) IS A MANDATORY REQUIREMENT AND IS NOT AN EMPTY FORMALITY HAS BEEN CLARIFIED BY THE APEX C OURT IN ITS JUDGMENT IN HOTEL BLUE MOON (SUPRA) AND THAT JUDGMENT HAS BEEN FOLLOWED BY THIS COURT IN THE JUD GMENT IN TRAVANCORE DIAGNOSTICS (P) LIMITED (SUPRA) . 11. HOWEVER, INSOFAR AS THIS CASE IS CONCERNED, QUE STION TO BE CONSIDERED IS WHETHER THE OMISSION TO MENTION SECTI ON 143(2) LITERALLY IN ANY ONE OF THE NOTICES ISSUED TO THE A SSESSEE WOULD INVALIDATE THE ASSESSMENT ORDER. WHILE IN THIS CONT EXT, IT IS RELEVANT TO TAKE NOTE OF THE DIVISION BENCH JUDGMEN T OF THIS COURT IN K.J.THOMAS V. COMMISSIONER OF INCOME TAX [2008] 301 ITR 301 [KER] , WHERE A DIVISION BENCH OF THIS COURT HAS HELD THU S: THE APPELLANT HIMSELF HAD PRODUCED ANNEXURE A-I WH ICH IS THE REPLY FILED BY HIM PURSUANT TO THE DETAILS CALLED F OR BY THE ASSESSING OFFICER. IT IS SEEN FROM ANNEXURE A-I THA T THE ENTIRE QUESTIONS RAISED AND CONSIDERED IN THE REASSESSMENT WAS ANSWERED BY THE ASSESSEE. HOWEVER, THE ASSESSEE HAS WRITTEN IN PARAGRAPH 7 OF THE SAID REPLY THAT HE WAS NOT ISSUED ANY NOTICE UNDER SECTION 143(2) OF THE ACT. IN THE NORMAL COURSE, A DETAILED REPLY IN THIS NATURE IS FURNISHED ONLY AFTER ISSUING A NOTICE UND ER SECTION 143(2) OF THE ACT. IN ANY CASE, WE FIND THAT AFTER THE ASS ESSEE FILED ANNEXURE A I REPLY, NO FURTHER NOTICE IS REQUIRED, BECAUSE REPLY WAS ALREADY FILED BY THE APPELLANT. THE PROCEDURE U NDER SECTION 143(2) OF THE ACT IS TO ENSURE THAT AN ADVERSE ORDE R IS ISSUED ONLY AFTER PROPER OPPORTUNITY IS GIVEN TO THE ASSESSEE. IN THIS CASE, IT IS CONCEDED THAT THE ASSESSEE GOT OPPORTUNITY TO FILE REPLY AND DETAILED REPLY WAS IN FACT FILED AND THE REASSESSME NT NOTICE AND THE FINAL ORDER WERE ALSO ISSUED WITHIN THE TIME LIMIT PRESCRIBED UNDER ITA NO. 1626/BANG/2018 PAGE 6 OF 7 THE ACT. 12. FROM THE ABOVE, IT IS OBVIOUS THAT THE PROCEDUR E UNDER SECTION 143(2) IS INTENDED TO ENSURE THAT AN ADVERS E ORDER IS PASSEDAGAINST THE ASSESSEE ONLY AFTER AFFORDING THE ASSESSEE A PROPER OPPORTUNITY. THEREFORE, THE QUESTION TO BE C ONSIDERED IS WHETHER THE ASSESSEE IN THIS CASE HAD SUCH AN OPPOR TUNITY. IT IS IN THIS CONTEXT, THE NOTICES THAT WERE ISSUED TO THE A SSESSEE ASSUMES IMPORTANCE. READING OF THE REASONS RECORDED AND COM MUNICATED TO THE ASSESSEE, ANNEXURE E NOTICE POSTING THE CASE, A ND ANNEXURE I NOTICE, SHOW THAT THE ASSESSEE WAS PUT ON NOTICE TH E INADMISSIBILITY OF THE REDUCTION FROM THE TOTAL INCOME MADE BY IT A ND THE ASSESSEE BY ITS ANNEXURE C OBJECTIONS, F REPLY AND THE REPLY FILED BY IT TO ANNEXURE I NOTICE HAD JUSTIFIED THE DEDUCTION MADE BY IT. FURTHER BEFORE ANNEXURE K ASSESSMENT ORDER WAS PASSED, THE ASSESSEE WAS AFFORDED AN OPPORTUNITY OF HEARING ALSO. EVIDENTLY, THEREFORE, THE ASSESSEE HAD AMPLE NOTICE OF THE CASE IT HAD TO ANS WER AND THE ASSESSEE AVAILED OF THOSE OPPORTUNITIES BY ANSWERIN G THE CASE AGAINST IT. IN SUCH A SITUATION, WE ARE NOT PREPARE D TO THINK THAT THERE WAS ABSENCE OF NOTICE UNDER SECTION 143(2) OR THAT ANY PREJUDICE WAS CAUSED TO THEASSESSEE IN DEFENDING TH E CASE AGAINST IT. WE ARE NOT, THEREFORE, PREPARED TO THINK THAT T HE ASSESSMENT ORDER IS INVALID ON THE GROUND CONTENDED BY THE ASS ESSEE. 13. IN SUCH CIRCUMSTANCES, ANSWERING THE AFORESAID QUESTION OF LAW IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE T HIS APPEAL IS DISMISSED. 5.5 IN VIEW OF ABOVE DISCUSSION, THE CONTENTIONS OF THE APPELLANT REGARDING NON ISSUE OF NOTICE U/S 143(2) IS NOT SUS TAINABLE. 5. FROM THE ABOVE PARAS REPRODUCED FROM THE ORDER O F CIT (A), IT IS SEEN THAT IN FACT, BEFORE LD. CIT (A), THE ASSESSEE PLACED RELIA NCE ON THIS JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ACIT & A NR. VS. HOTEL BLUE MOON (SUPRA). BUT THE ISSUE WAS DECIDED BY CIT(A) BY FO LLOWING THE JUDGEMENT OF HONBLE KERALA HIGH COURT RENDERED IN THE CASE OF P ADINJAREKARA AGENCIES (P.) LTD. VS. CIT (SUPRA) ON THIS BASIS THAT THE PU RPOSE OF NOTICE U/S. 143(2) IS THIS THAT THE ASSESSEE IS GIVEN AN OPPORTUNITY TO P RODUCE ANY EVIDENCE AND DETAILS ON WHICH IT MAY RELY IN SUPPORT OF THE RETU RN OF INCOME FILED BY IT AND IN THE PRESENT CASE, IT IS APPARENT THAT THE AO HAS GI VEN DUE OPPORTUNITY TO THE ASSESSEE AND HAS ISSUED NOTICES AND HAS ALSO PROVID ED THE REASONS RECORDED TO THE ASSESSEE AND IN REPLY, THE ASSESSEE FILED LETTERS AND SUBMISSIONS BEFORE THE AO AND HAS PARTICIPATED IN T HE ASSESSMENT PROCEEDINGS. BUT THE LD. CIT(A) HAS FAILED TO NOTE THIS VITAL ASPECT OF THE ITA NO. 1626/BANG/2018 PAGE 7 OF 7 MATTER THAT WITHOUT ISSUING NOTICE U/S. 143(2), THE AO DOES NOT GET JURISDICTION AND IN THE ABSENCE OF JURISDICTION, THE ASSESSMENT ORDER PASSED BY AO IS BAD IN LAW. THE JUDGEMENT OF HONBLE APEX COURT IS SQU ARELY APPLICABLE AND AS PER THIS JUDGEMENT, THE ASSESSMENT IS BAD IN LAW. BEFORE ME ALSO, THE LD. DR OF REVENUE COULD NOT PRODUCE COPY OF NOTICE SAID TO HAVE BEEN ISSUED BY AO U/S. 143(2) ALTHOUGH SHE HAS PRODUCED COVERING LETT ER IN WHICH IT IS STATED THAT NOTICE U/S. 143(2) IS ENCLOSED BUT IN THE ABSENCE O F COPY OF THE SAID NOTICE U/S. 143(2), IT HAS TO BE ACCEPTED THAT NO NOTICE U /S. 143(2) WAS ISSUED BY AO AND SERVED ON THE ASSESSEE WITHIN THE PRESCRIBED TI ME. HENCE, RESPECTFULLY FOLLOWING THIS JUDGEMENT OF HONBLE APEX COURT REND ERED IN THE CASE OF ACIT &ANR. VS. HOTEL BLUE MOON (SUPRA), I HOLD THAT THE PRESENT ASSESSMENT ORDER IS BAD IN LAW AND THEREFORE, I QUASH THE SAME. IN VIEW OF THIS DECISION, OTHER GROUNDS RAISED BY ASSESSEE DO NOT REQUIRE ANY ADJUD ICATION. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST DECEMBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.