Failure to issue notice under Section 143(2) invalidates the assessment order, as it is a mandatory procedure under the Income Tax Act.

ORDER :

S.R.KRISHNA KUMAR, J.

1. In this petition, petitioner seeks for the following reliefs:-

“ i) Issue a writ of Certiorari or direction in the nature of a writ of certiorari quashing the assessment order dated 30.03.2022 passed under section 147 rws 144 r/ws 144B of the Income Tax Act, 1961 for the assessment year 2013-14 by the Respondent No.1 bearing DIN No. ITBA/AST/S/147/2021-22/1042034413 (1) herein marked as Annexure - A1.

ii) Issue a writ of Certiorari or direction in the nature of a writ of certiorari quashing the computation sheet dated 30.03.2022 issued by the Respondent No.1 for the assessment year 2013-14 bearing DIN and Document No. ITBA/AST/S/116/2021-22/1042034467(1) herein marked as Annexure - A2.

iii) Issue a writ Certiorari or direction in the nature of a writ of certiorari quashing the notice of demand issued under section 156 of the Act dated 30.03.2022 by the Responentino.8 assessment for the year 2013-14 bearing DIN and Notice No. ITBA/AST/S/156/2021-22/1042034474(1) herein marked as Annexure - A3.

iv) Issue a writ of Certiorari or direction in the nature of a writ of certiorari quashing the penalty notice dated 30.03.2022 by the Respondent No.8 issued under section 274 r/w Section 271(1)(c) of the Act for the assessment year 2013- 14 bearing DIN No.ITBA/PNL/S/271(1) (C)/2021- 22/1042034496(1) herein marked as Annexure-A4.

v) Issue a writ of certiorari or direction in the nature of a writ of certiorari quashing the notice dated: 31.03.2021 issued under Section 148 of the Income Tax, 1961 for the assessment year 2013-14 by the Respondent No.2 bearing DIN & Notice No.ITBA/AST/S/148/2020-21/1032014925(10 herein marked as Annexure-B.

vi) And pass such other orders as this Hon’ble Court deems fit and proper in the interest of justice and equity.”

2. Heard learned counsel for the petitioner and learned counsel for the respondents – revenue and perused the material on record.

3. A perusal of the material on record will indicate that the respondents have initiate the impugned proceedings culminated in the impugned assessment order by issuing notices under Sections 148 and 142(1) of the I.T.Act and other notices without issuing the mandatory notice under Section 143 (2) of the I.T.Act, in the absence of which, the entire proceedings including the impugned order would get vitiated as held by the Patna High Court in the case of Commissioner of Income Tax – 11 vs. Nagendra Prasad –(2023) 156 taxmann.com 19, wherein it is held as under:-

1. The appeal is filed against the order of the Tribunal setting aside an order under section 143(3)/147 of the Income-tax Act, 1961.

2. The assessee had initially moved the High Court relying on the decision of the Hon'ble Supreme Court in Assistant Commissioner of Income-Tax v. Hotel Blue Moon [(2010) 321 ITR 362 (SC)] which writ petition was dismissed refusing invocation of the extraordinary remedy and relegating the assessee to the statutory remedy.

3. The Tribunal found, relying on the decision in Hotel Blue Moon (supra) that the proceedings are liable to be struck down. It was held that the return was filed by the assessee in response to the notice under section 148 though delayed and in such circumstance, there should have been a notice issued under section 143(2) as has been held in Hotel Blue Moon (supra).

4. The only question of law arising in the facts and circumstances of the case is whether notice should have been issued under section 143(2) of the Income-tax Act?

5. Admittedly, the notice was issued by the Assessing Officer under section 148 of the Act on 14-7-2008 requiring the assessee to file a return within thirty days. A return was filed much later on 31-3-2009, after eight and a half months.

6. On identical facts, in M.A.