IN HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2014 CORAM HONOURABLE MR.JUSTICE R.SUDHAKAR AND HONOURABLE MR.JUSTICE R.KARUPPIAH Tax Case (Appeal) No.766 of 2014 N.Ahamed Ali Legal heir of Shri S.Naina Mohammed (deceased) .. Appellant -vs- Income Tax Officer Ward II(2) Erode .. Respondent Memorandum of Grounds of Tax Case Appeal under Section 260A of Income Tax Act, 1961 against order of Income Tax Appellate Tribunal, Chennai 'D' Bench dated 1.5.2014 made in I.T.A.No.1600/Mds/2005 for assessment year 1999-2000. For Appellant : Mrs.Pushya Sitharaman Senior Counsel for Ms.Srividhya For Respondent : Mr.J.Narayanasamy JUDGMENT (Judgment of Court was delivered by R.SUDHAKAR, J.) present tax case appeal, at instance of assessee, raises following substantial questions of law for consideration:- ''(1) Whether on facts and in circumstances of case, Tribunal was right in holding that assessment is valid even though no notice under Section 143(2) was issued, contrary to decision of 2 Apex Court in case of CIT v. Hotel Bluemoon (321 ITR 362), wherein it was held that issuance of notice under Section 143(2) is mandatory? (2) Whether on facts and in circumstances of case, issuance of notice under Section 143(2) of Income Tax Act, 1961 within prescribed time limit for purpose of making assessment under Section 143(3) of Income Tax Act, 1961 is mandatory? (3) Whether Tribunal was right in law in upholding additions, where discrepancy arose because quantum of income and assets shown in return of income were more than figures in books of accounts?'' 2. It is case of assessment under Section 143(3) read with Section 253 without issuance of mandatory notice under Section 143(2) of Income Tax Act, 1961. When assessee preferred appeal against order of assessing officer on ground that no notice was issued under Section 143(2), Commissioner of Income Tax (Appeals) held in favour of assessee. On challenge to said order by department before Tribunal, placing reliance upon decision of this Court in M/s Areva T & D India Ltd., v. Assistant Commissioner of Income Tax, (2007) 294 ITR 0233, Tribunal set aside order of Commissioner of Income Tax (Appeals) and remanded matter to assessing officer. said order of Tribunal was challenged before this Court in W.P.No.4885 of 2009 and writ petition was allowed directing writ petitioner to take steps to bring legal representatives of deceased assessee on record before Tribunal. 3 Thereafter, when proceedings continued before Tribunal, decision of Supreme Court in Commissioner of Income Tax v. Hotel Bluemoon (321 ITR 362) was relied upon by assessee for proposition that issuance of notice under Section 143(2) is mandatory and omission is not curable. Nevertheless, Tribunal, following decision of this Court in M/s Areva T & D India Ltd., v. Assistant Commissioner of Income Tax, (2007) 294 ITR 0233, remanded matter to assessing officer, against which appellant has filed present appeal. 3. Heard learned counsel for parties. 4. question that arises for consideration is whether proceedings of department for purpose of assessment under Section 143(3) would be justified without issuance of mandatory notice under Section 143(2) of Income Tax Act? 5. issue is no longer res integra, as we have also recently in T.C.(A)Nos.582 and 583 of 2014 dated 15.9.2014 (Commissioner of Income Tax, Trichy v. M/s Fathima Thanga Maaligai, Karaikal), placing reliance on decision of Supreme Court in Commissioner of Income Tax v. Hotel Bluemoon (321 ITR 362) as well as decision of Division Bench of this Court in T.C.(A)No.159 of 2006 dated 17.7.2012 (Sapthagiri Finance & Investments v. Income Tax Officer) held that issuance of notice under Section 143(2) is mandatory. In such view of matter, we set 4 aside order of Tribunal and answer substantial questions of law in favour of assessee and against Revenue. tax case appeal stands allowed. No costs. Index : yes (R.S.J.,) (R.K.,J.) Internet: yes 19.11.2014 ss To 1. Income Tax Appellate Tribunal Chennai 'D' Bench Chennai 2. Income Tax Officer Ward II(2) Erode 5 R.SUDHAKAR, J. and R.KARUPPIAH,J. ss Tax Case (A) No.766 of 2014 19.11.2014 N. Ahamed Ali v. Income-tax Officer, Ward-II(2), Erode