ITO 24(1)(2), MUMBAI V. SANTOSH G. SAWANT, MUMBAI

ITA 830/MUM/2011

• Counselvise Citation: 83019914 RSA 2011
• Duration Of Justice: 4 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Department
• Bench Allotted: H
• Next Hearing Date: 27-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 31-01-2011
• Court: TRIBUNAL
• Department Lawyers: AND CROSS OBJECTION
• Assessee Lawyers: ARE DIRECTED A GAINST
• Keywords: Question of law; Retraction; Condonation of delay; Reassessment proceedings
• Section: 143(3); 142(1); 133A; 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H MUMBAI. BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO 830/MUM/2011 ASSESSMENT YEAR: - 2005 - 06 ITO - 24(1)(2) C - 13, 6 TH FLOOR, R. NO. 608, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E) MU;MBAI 400 051. VS. SHRI SANTOSH G. SAWANT SHOP NO. 24, SHARAD KUNJ TILAK ROAD, SANTACRUZ (W) MUMBAI 400 060. PAN/GIR NO. AADPS 5520L APPELLANT RESPONDENT CO NO. 97/MUM/2014 ARISING OUT OF ITA NO 830/MUM/2011 ASSESSMENT YEAR: - 2005 - 06 SHRI SANTOSH G. SAWANT SHOP NO. 24, SHARAD KUNJ TILAK ROAD, SANTACRUZ (W) MUMBAI 400 060. VS. ITO - 24(1)(2) C - 13, 6 TH FLOOR, R. NO. 608, PRATYAKSHKAR BHAV AN, BANDRA KURLA COMPLEX, BANDRA (E) MU;MBAI 400 051.. PAN/GIR NO. AADPS 5520L APPELLANT RESPONDENT ORDER PER G.S. PANNU, AM THE CAPTIONED APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 30.11.2010, WHICH IN - TURN HAS ARISEN FR OM AN ORDER PASSED BY ASSESSING OFFICER U/S 143(3) R.W.S REVENUE BY SHRI S.K.SINGH ASSESSEE BY SHRI VIJAY MEHTA DATE OF HEARING 11.06.2015 DATE OF PRONOUNCEMENT 30 .06.2015 2 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 2 147 OF THE INCOME TAX ACT, 1961( HEREINAFTER REFERRED TO AS THE ACT) DATED 30.12.2009 PERTAINING TO ASSESSMENT YEAR 2005 - 06. 2. IN BRIEF, RELEVANT FACTS ARE THAT THE ASSESSEE INDIVIDUAL IS ENGAGED IN THE BUSINESS OF SALE OF VADA PAV AND SNACKS, AND HE FILED A RETURN OF INCOME ON 01.09.2005, DECLARING A TOTAL INCOME OF RS. 1,72,800/ - , WHICH WAS DULY PROCESSED U/S 143(1) OF THE ACT . SUBSEQUENTLY, THE ASSESSING OFFICER NOTED THAT THE RETURN OF INCOME DID NOT CONTAIN AN AMOUNT OF RS. 21,90,750/ - , WHICH WAS ADMITTED BY THE ASSESSEE AS ADDITIONAL INCOME FOR THE INSTANT ASSESSMENT YEAR IN THE COURSE OF A STATEMENT RECORDED AT THE TIME O F A SURVEY ACTION U/S 133A OF THE ACT ON 18.11.2004. IN VIEW OF THE AFORESAID REASON, THE ASSESSING OFFICER RE - OPENED THE ASSESSMENT BY ISSUANCE OF NOTICE U/S 148 OF THE ACT ON 16.05.2008. IN THE ENSUING ASSESSMENT PROCEEDINGS, ASSESSEE CONTENDED THAT ON 3 .02.2005, HE HAD COMMUNICATED TO THE DEPARTMENT VIDE HIS AFFIDAVIT DATED 2.02.2005, WHEREBY THE STATEMENT MADE DURING THE SURVEY WAS RETRACTED BY HIM. THUS, THE ADDITIONAL INCOME OF RS. 21,90,750/ - ADMITTED DURING THE SURVEY WAS NOT DECLARED IN THE RETURN OF INCOME FILED ON 01.09.2005. THE REPLY OF THE ASSESSEE HAS BEEN REPRODUCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, WHICH READS AS UNDER: - (1) REASON FOR NOT ADDING RS. 21,90,750/ - AS PER SURVEY U/S 131 OF I.T. ACT ON 11/11/2004: (I) THE GROSS SALE MADE BY HIM DURING THE WHOLE YEAR WAS RS. 21,94,954/ - AND THE SAME WAS SHOWN IN THE PROFIT & LOSS A/C DRAWN FROM THE BOOKS AND RECORDS AVAILABLE FOR VERIFICATION. THE DEPARTMENT CANNOT MAKE ASSUMPTION OF INCOME WITHOUT ANY RELIABLE EVIDENCE/FINDINGS ON RECORD. 3 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 3 (II) OUR LETTER DATED FEBRUARY 3, 2005 DULLY ACKNOWLEDGED BY ITO 24(1)(2) WITH MR. SANTOSH SAWANTS AFFIDAVIT DATED 2 ND FEBRUARY, 2005 WHICH IS SELF EXPLANATORY THAT STATEMENT MADE DURING THE SURVEY WAS RETRACTED BASED ON VALID AND LEGAL GROUNDS. PL EASE FIND ENCLOSED COPY OF THE LETTER DATED FEBRUARY 3, 2005 ALONG WITH AFFIDAVIT COPY. (III) IN PRECEDING ASSESSMENT YEAR 2003 - 04, THE A.O. HAD ESTIMATED SALES ON UNRELIABLE BASIS TO THE TUNE OF RS. 24,72,480/ - AND MADE ADHOC ADDITIONS BUT THE SAME WAS CHALLEN GED AND WAS REJECTED BY CIT APPEAL. PLEASE FIND COPY OF THE SAID ORDER FOR YOUR PERUSAL AND RECORD. THE CURRENT ASSESSMENT IS HAVING ABSOLUTELY SIMILAR FACTS AND FIGURES. THEREFORE, PLEASE GIVE PROPER CONSIDERATION TO OUR SUBMISSION AND RESPECT HONOURABLE CIT APPEAL. 3 . THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE REPLY AND HELD RETRACTION WAS A BELATED AFTERTHOUGHT, DEVOID OF ANY SUPPORTING DOCUMENTARY EVIDENCE. ACCORDINGLY, HE MADE AN ADDITION OF RS. 21,90,750/ - TO THE RETURNED INCOME, ON ACCOUNT OF ADDITIONAL INCOME OFFERED DURING THE COURSE OF SURVEY. 4. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT THERE WAS NO MATERIAL IN POSSESSION OF THE DEPARTMENT, EXCEPT THE IMPUGNED STATEMENT DATED 18.11.2004, TO SUPPORT THE ADDITION OF RS. 21,90,750/ - MADE TO THE RETURNED INCOME, WHICH WAS RETRACTED IN FEBRUARY 2005 PRIOR TO FILING OF RETURN. THE CIT(A) HELD THAT ADDITION CANNOT BE SUSTAINED ON THE BASIS OF THE STATEMENT ALONE, IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL TO SUSTAIN THE ADDITION, FOL LOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. UTTAM CHAND AGARWAL IN ITA NO. 634 OF 2009. AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS IN APPEAL BEFORE US. THE RESPONDENT - ASSESSEE HAS ALSO FILED CROSS OBJECTION RAISING THE FO LLOWING GROUNDS: - 4 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 4 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(APPEALS) HAS ERRED IN DISMISSING THE ADDITIONAL GROUNDS, RAISED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS CHALLENGING THE ACTION OF THE AO TO INVOKE PROVISIONS OF SECTION 147 BY ISSUING NOTICE U/S 148, BY TREATING THE SAME AS NOT PRESSED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(APPEALS) OUGHT TO HAVE HELD THAT THE ORDER PASSED BY THE AO UNDER SECTION 143(3) R.W.S 147 OF THE I.T. ACT, 1961 ACT IS BAD IN LAW AND VOID AB INITIO. 5. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSESSEE HAS RAISED A PRELIMINARY OBJECTION THAT THE ASSESSMENT PURSUANT TO ISSUANCE OF NOTICE UNDER SECTION 148 IS NULL AND VOID AB INITIO, BECAUSE THE MANDATORY NOTICE U/S 143(2) OF THE ACT WAS NOT ISSUED BEFORE COMPLETION OF ASSESSMENT. HE SUBMITTED THAT THE IMPUGNED NOTICE U/S 143(2) OF THE ACT IS MANDATORY IN NATURE AND IN THE ABSENCE OF ISSUANCE OF SUCH NOTICE, THE IMPUGNED REASSESSMENT PROCEEDINGS COULD NOT HAVE BEEN PROCEEDED WITH. FOR THIS PROPOSITION, HE HAS RELIED UPON THE FOLLOWING DECISIONS: - I) ACIT VS. HOTEL BLUE MOON 321 ITR 362 (SC) II) NIKESH A. GADA (HUF VS. ITO IN ITA NO. 2714/MUM/2014 (MUM) III) RAMESH B. CHANDAK VS. ITO IN ITA NO. 16 43/PN/2011 (PUNE) IV) SHRI ISHWAR SADAN COOPERATIVE HOUSING SOCIETY LTD. VS. DCIT IN ITA NO. 2441/MUM/2011 (MUM) V) SHRI SHASHI KALA M. PAWAR VS. ITO IN ITA NO. 4821/MUM/2011 (MUM); 6. NOTABLY, BEFORE THE CIT(A) ALSO, ASSESSEE HAD RAISED AN ADDITIONAL GROUND OF APPEAL CHALLENGING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS BY ISSUANCE OF NOTICE U/S 147/148 OF THE ACT, INTER - ALIA CONTEND ING THAT THE ASSESSMENT U/S 143( 3) R.W.S 147 OF THE ACT HAS BEEN COMPLETED WITHOUT 5 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 5 ADHERING TO THE PROCEDURE LAID DOWN IN THE ACT . THE CASE SET UP BY THE ASSESSEE WAS THAT, AFTER FILING OF RETURN OF INCOME BY THE ASSESSEE IN RESPONS E TO THE NOTICE ISSUED U/S 148 OF THE ACT, THE ASSESSING OFFICER PROCEEDED TO MAKE INQUIRY BY ISSUE OF NOTICE U/S 142(1) OF THE ACT AND COMPLETING THE A SSESSMENT WITHOUT SERVING NOTICE U/S 143(2) OF THE ACT. BY WAY OF DISCUSSION IN PARA 2 OF THE IMPUGNED ORDER, THE CIT(A) HAS DISMISSED THE GROUND ON THE PLEA THAT IT WAS NOT PRESSED BEFORE HIM. THE AFORESAID GROUND DISMISSED BY THE CIT(A) HAD NO IMPACT ON THE ULTIMATE DECISION, WHEREBY THE ADDITION MADE DURING ASSESSMENT WAS DELETED, WHICH RESULTED IN RESTORATION OF THE INCOME AS PER THE RETURN OF INCOME. 7. NOW, THE CROSS OBJECTION FILED BY THE ASSESSEE IS BELATED BY 110 DAYS AND LD. REPRESENTATIVE FOR TH E ASSESSEE HAS INVITED OUR ATTENTION TO THE AFFIDAVIT DATED 20.05.2014, SEEKING CONDONATION OF DELAY IN FILING OF THE CR OSS OBJECTION. THE PREMISE FOR C O NDONATION IS THAT DELAY HAS OCCURRED SINCE THE ASSESSEE HAD RECEIVED THE APPROPRIATE RELIEF ON MERITS F ROM THE FIRST APPELLATE AUTHORITY, BUT ON A LATER DATE CROSS OBJECTION RAISING THE SAID GROUND WAS FILED AT THE ADVICE OF THE COUNSEL. THE BONAFIDES OF THE REASON FOR DELAY IN FILING OF CROSS OBJECTION HAVE NOT BEEN ASSAILED BY THE REVENUE, AND THEREFORE, THE DELAY IN FILING OF THE CROSS OBJECTION WAS CONDONED. INSOFAR AS, ADMISSION OF SUCH A PLEA BEFORE US IS CONCERNED, WE FIND THAT THE SAME DESERVES TO BE ADMITTED. QUITE CLEARLY, THE ISSUE INVOLVED IS A POINT OF LAW, AND THE RELEVANT FACTS ARE ON RECORD A ND FOLLOWING THE PARITY OF REASONING LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION VS. CIT 229 ITR 383 (SC) , THE SAME DESERVES TO BE ADMITTED. WE ARE CONSCIOUS 6 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 6 OF THE FACT THAT THE AFORESAID GROUND DOES NOT ARISE FROM THE IMPUGNED ORDER OF CIT(A) AS IT WAS DISMISSED IN - LIMINE AS UN - ADMITTED BY THE CIT(A) AFTER NOTICING THAT IT WAS NOT PRESSED BEFORE HIM. NEVERTHELESS, THE ISSUE RAISED IS A POINT OF LAW, WHICH GOES TO THE ROOT OF THE MATTER, AND IS THUS ADMI SSIBLE FOR ADJUDICATION, EVEN IF IT IS RAISED FOR FIRST TIME BEFORE THE TRIBUNAL, FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. (SUPRA) AND THAT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUT HVI BROKERS & SHAREHOLDE RS [2012] 349 ITR 336 (BOM) . 8. ON THE BASIS OF THE DECISIONS RELIED UPON BY THE ASSESSEE, IT CLEARLY EMERGES THAT OMISSION TO ISSUE NOTICE U/S 143(2) RENDERS AN ASSESSMENT ORDER PASSED U/S 143 ( 3) R.W.S 147 OF THE ACT BAD - IN - LAW AND NON EST. THE ISSUANCE OF NOTICE U/S 143(2) IS MANDATORY AND A CONDITION PRECEDENT BEFORE EMBARKING UPON THE ASSESSMENT. MERE ISSUANCE OF NOTICE U/S 147 DOES NOT EMPOWER THE ASSESSING OFFICER TO FRAME THE ASSESSMENT ORDER . APART FROM THE DECISIONS CITED ABOVE, A REFEREN CE CAN ALSO BE MADE TO THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ACIT VS. GENO PHARMACEUTICALS LTD (TAX APPEALS NOS. 75 TO 78 OF 2012) DATED 14/02/2013 . IN THE SAID CASE, THE REVENUE WAS CHALLENGING THE DECISION OF THE TRIBUNAL HOLDING T HAT THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AFTER REOPENING OF THE CASE WAS MANDATORY. THE HONBLE HIGH COURT REPELLED THE CHALLENGE OF THE REVENUE, AND THE FOLLOWING DISCUSSION IN THE JUDGMENT OF THE HONBLE HIGH COURT IS RELEVANT: - 7 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 7 4. SO FAR AS TA X APPEALS NO.77/2012 AND 78/2012 ARE CONCERNED, IN BOTH THESE APPEALS, THE ITAT HAS HELD THAT THE ISSUANCE OF NOTICE AFTER REOPENING OF THE CASE WAS MANDATORY AND THIS ORDER IS UNDER CHALLENGE. IT IS CONTENDED THAT THE SAID ORDER IS CONTRARY TO THE PROVISI ONS OF SECTIONS 292BB WHICH WAS INTRODUCED BY THE FINANCE ACT 2008 W.E.F. 01.04.2008, IN WHICH IT IS STATED THAT IN A CASE WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR CO - OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL B E DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THE SAID ACT WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THE SAID ACT. PERUSAL OF THE ORDER OF THE ITAT REVEALS THAT THIS ASPECT WAS NOT CANVASSED BEFORE THE ITAT. 5. APART FROM THAT, IT IS AN ADMITTED POSITION THAT NO NOTICE UNDER SECTION 143(2) HAD BEEN ISSUED WHILE MAKING ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 147. THE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LT D. VS. COMMISSIONER OF INCOME - TAX, REPORT IN 229 ITR 383 HAS HELD THAT THE TRIBUNAL HAS DISCRETION TO ALLOW OR NOT TO ALLOW A NEW GROUND TO BE RAISED. BUT IN A CASE WHERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER THE QUESTION OF LAW ARISING FROM FACTS WHIC H ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, THERE IS NO REASON WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. THE ITAT, AFTER RELYING O N THE JUDGMENT OF THE APEX COURT IN R. DALMIA VS. CIT, REPORTED IN 236 ITR 480, CAME TO THE CONCLUSION THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) WAS MANDATORY. THE IT AT HAS TAKEN INTO CONSIDERATION THE RELEVANT PROVISIONS AND HAS ALSO TAKEN INTO CONSID ERATION THE JUDGMENT OF THE APEX COURT AND RELYING ON THE SAID JUDGMENTS, THE ITAT HAS HELD THAT NOTICE UNDER SECTION 143(2) IS MANDATORY AND IN THE ABSENCE OF SUCH SERVICE, THE ASSESSING OFFICER CANNOT PROCEED TO MAKE AN INQUIRY ON THE RETURN FILED IN COM PLIANCE WITH THE NOTICE ISSUED UNDER SECTION 148. 6. UNDER THESE CIRCUMSTANCES, NO CASE IS MADE OUT FOR INTERFERING WITH THE TAX APPEALS NO. 77/2012 AND 78/2012 SINCE NO SUBSTANTIAL QUESTION OF LAW IS RAISED IN BOTH THE APPEALS. 8 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 8 9. IN THE BACKGROUND OF THE ABOVE LEGAL POSITION, THE REVENUE WAS ALLOWED OPPORTUNITY TO PROVE THAT ANY NOTICE U/S 143(2) OF THE ACT WAS ISSUED WHILE MAKING THE IMPUGNED ASSESSMENT UNDER SECTI ON 143(3) R.W.S 147 OF THE ACT BECAUSE , THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3) R.W.S 147 OF THE ACT DOES NOT CONTAIN ANY REFERENCE TO ISSUANCE OF NOTICE U/S 143(2) OF THE ACT WHILE MAKING THE ASSESSMENT. THE REVENUE HAS NOT PRODUCED ANY MATERIAL TO PROVE ISSUING OF NOTICE U/S 143(2) OF THE ACT WHILE MAKING THE IMPUGNED ASSESSMENT, I N SPITE OF REQUISITE OPPORTUNITY. IN FACT, ON THE LAST DATE OF HEARING OF THE APPEAL ON 12.06.2015 , T HE FOLLOWING REPORT OF THE CONCERNED ASSESSING OFFICER DATED 8/6/2015 WAS FURNISHED: - SUB: - MR . SANTOSH SAWANT. ITA NOS. 830/M/11 (A.Y. 2005 - 06) & CO 97 /M/14 PAN - AADPS5520L REF: LETTER NO. JT. CIT (SR. AR)/ITAT/H BENCH/2015 - 16, DATED 02.06.2015. KINDLY REFER TO THE ABOVE. 2. I ONCE AGAIN STATE THAT AFTER RESTRUCTURING, I HAVE TAKEN OVER THIS CHARGE W.E.F. 17 - 12 - 2014. THE ITO - 30(2)(3), MUMBAI WHO WAS HAVING JURISDICTION OF THE ABOVEMENTIONED ASSESSEE HAS HANDED OVER ONLY TIME - BARRING CASES. ON RECEIPT OF LETTERS FROM YOU, T IME AND AGAIN I HAVE REQUESTED THE ITO - 30(2)(3) TO TRANSFER THE CASE RECORDS IMMEDIATELY TO THIS OFFICE TO ENABLE ME TO SUBMIT THE REPORT IN TIME. THE ITO - 30(2)(3) HAS NOW FORWARDED ON 8 - 06 - 2015 SOME FOLDERS (EXCEPT A.Y.2005 - 06 BEING NOT TRACEABLE) INCLUDI NG ONE SURVEY FOLDER, WHICH WERE AVAILABLE WITH HIM. 3. I AM THEREFORE SUBMITTING THE 3 SETS OF COPIES OF (I) SURVEY REPORT AND (II) STATEMENTS RECORDED OF SHRI SANTOSH SAWANT, OWNER AND ASSESSEE, SHRI VIPIN S. RANDIVE AND SHRI SAMPAT J. THUBE, MANAGER OF M/S. BATATAVADA SAMRAT ON 18 - 11 - 2004 DURING THE COURSE OF SURVEY PROCEEDINGS U/S.133A OF THE IT ACT, 1961 WHICH ARE AVAILABLE IN THE SAID FOLDERS. 9 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 9 10. THE ENTIRE MATERIAL ON RECORD DOES NOT ESTABLISH THAT ANY NOTICE U/S 143(2) OF THE ACT WAS ISSUED WH ILE COMPLETING THE IMPUGNED ASSESSMENT. IN FACT, LEAVE ALONE ANY PROOF OF ISSUANCE OF NOTICE U/S 143(2), REVENUE HAS NOT EVEN ASSERTED THAT THE REQUISITE NOTICE U/S 143(2) WAS ISSUED WHILE MAKING THE IMPUGNED ASSESSMENT. THEREFORE, FACTUALLY SPEAKING, ONE HAS TO PROCEED ON THE BASIS THAT NO NOTICE U/S 143(2) HAD BEEN ISSUED WHILE MAKING ASSESSMENT U/S 143(3), R.W.S 147 OF THE ACT. 11. THUS, IN THE ABOVE FACTUAL BACKGROUND, CONSIDERING THE RATIO OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GENO PHARMACEUTICALS LTD. (SUPRA) THE IMPUGNED ASSESSMENT ORDER IS NON - MAINTAINABLE IN LAW. WE HOLD SO. THUS ASSESSEE SUCCEEDS ON THIS ASPECT. 12. SINCE WE HAVE HELD THE IMPUGNED ASSESSMENT AS NON - MAINTAINABLE, THE ISSUE RAISED BY THE REVENUE IN ITS A PPEAL REGARDING THE ADDITION TO RETURNED INCOME DELETED BY THE CIT(A) IS RENDERED ACADEMIC, AND INFRUCTUOUS. 13. IN VIEW OF THE ABOVE, APPEAL OF THE REVENUE IS DISMISSED AND CROSS OBJECTION OF THE ASSESSEE STANDS ALLOWED AS ABOVE. ORDER PRONOUNCED ON T HIS 30 TH DAY OF JUNE 2015. SD/ - SD/ - ( SANJAY GARG ) (G.S. PANNU) (JUDICIAL MEMBER/ U;KF;D LNL; ) (ACCOUNTANT MEMBER/ YS[KK LNL; ) MUMBAI DATED 30 - 06 - 201 5 10 ITA NO 830/MUM/2011 CO NO. 97/MUM/2014 ASSESSMENT YEAR 2005 - 06 SANTOSH G. SAWANT 10 COPY TO: THE APPELLANT THE RESPONDENT THE CONCERNED CIT(A) THE CONCERNED CIT THE DR, H BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI