IN INCOME TAX APPELLATE TRIBUNAL, BENCH- A, BANGALORE BEFORE SHRI A.K GARODIA, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA No.1075 /Bang/2016 (Asst. Year 2006-07) Shri S Bhagawan, No.7/1, Vydehi , Dewan Madhava Road, Basavanagudi, Bangalore. . Appellant Vs. Income-tax Officer, Ward 3(1), 5TH Floor, Unity Buildings Annex, Bengaluru. . Respondent Appellant by : Shri Shyam Chakravarthy, CA Respondent by : Shri Tshering Ongda, JCIT Date of Hearing : 26-09-2016 Date of Pronouncement : 30-09-2016 ORDER PER ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER This appeal by assessee is directed against order of Commissioner of Income-tax (Appeals) - 5, Bengaluru dated 3/3/2016 and it pertains to assessment year 2006-07. ITA No.1075/B/16 2 2. assessee is individual filing his return of income regularly. For impugned year, assessee has filed his return of income in capacity of individual declaring salary income of Rs.4,62,510/- on 12/7/2006. There was no scrutiny assessment made in case of assessee. 3. Notice u/s 148 dated 27/3/2013 was issued to assessee re- opening case for year 2006-07. notice was issued in name of S Bhagawan and Others. In response to notice u/s 148 of Act, assessee vide letter filed on 1/4/2013, request for issue of reasons recorded for issuing notice u/s 148. assessee further stated that, he has no income liable to be taxed during impugned assessment year which has escaped assessment. No notice u/s 143(2) and u/s 142(1) was served on assessee for impugned year under consideration. 4. Aggrieved by order of AO, assessee preferred appeal before CIT(A) and one of grounds raised was with respect to non issuance of notice u/s 143(2). assessee had submitted as follows ITA No.1075/B/16 3 10.1 It is submitted that learned AO pursuant to issue of notice u/s 148 of Act has not served notice u/s 143(2) of Act. Service of notice u/s 143(2) of Act is mandatory to assume jurisdiction under Act. When order has to be passed u/s 143(3) read with 147 of Act, service of notice u/s 143(2) is sine qua non. In case notice u/s 143(2) is not issued proceedings under Act is null and void. In instant case, notice u/s 143(2) was never served on assessee and hence there is legal defect in order passed u/s 147 read with 143(3) and this defect is not curable. 10.2 Hon ble Supreme Court in cse of ACIT & Another Vs. Hotel Blue Moon has held as under:- If assessment has to be completed u/s 143(3) read with 1158BC, notice u/s 143(2) should be issued within one year from date of filing f block return. Omission on part of assessing authority to issue notice u/s 143(2) cannot be procedural irregularity and is not curable. Therefore, requirement of notice u/s 143(2) cannot be dispensed with ITA No.1075/B/16 4 Hence it is prayed before your goodself to hold that notice u/s 143(2) was served on assessee and assessment order passed is without jurisdiction and same requires to be canceel3d in total in interest of equity and justice. 5. CIT(A) vide its order dated 3/3/2016 had not discussed or given any finding with respect to issuance of notice u/s 143(2). In this circumstance, matter is restored back to file of CIT(A), who shall decide issue in accordance with law after giving opportunity to assessee. 6. In result, appeal is set aside for statistical purpose. Order pronounced in open court on 30th September, 2016. Sd/- Sd/- (AK GARODIA) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore Dated : 30/09/2016 Vms ITA No.1075/B/16 5 Copy to :1. Assessee 2. Revenue 3.The CIT concerned 4.The CIT(A) concerned 5.DR 6.GF By order Asst. Registrar, ITAT, Bangalore S Bhagawan v. Income-tax Officer, Ward 3(1), Bengaluru