| आयकर अपीलीय अिधकरण (cid:12)ायपीठ, मुंबई | IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, HON’BLE ACCOUNTANT MEMBER &

SHRI ANIKESH BANERJEE, HON’BLE JUDICIAL MEMBER I.T.A. No. 1962/Mum/2018 Assessment Year: 2008-09 Urmish M. Udani Asst. Commissioner of Income RH-12, J-12, Prabhukrupa Vs Tax – 10(3), Mumbai Sector-6, Vashi Navi Mumbai - 400705 [PAN: AAGPU5477P]

अपीलाथ(cid:22)/ (Appellant) (cid:23)(cid:24) यथ(cid:22)/ (Respondent)

Assessee by : Shri Madhur Agrawal/Shri Fenil Bhatt, A/Rs Revenue by : Shri Vivek Perampurna, CIT D/R सुनवाई की तारीख/Date of Hearing : 7/10/2025 घोषणा की तारीख /Date of Pronouncement: 09/10/2025 आदेश/O R D E R PER NARENDRA KUMAR BILLAIYA, AM:

This appeal by the assesse is preferred against the order of the ld.

CIT(A) – 24, Mumbai [hereinafter “the ld. CIT(A)”] dated 29/12/2017, pertaining to AY 2008-09.

2. In addition to the challenge on the merits of the case, the assessee has also challenged the validity of the re-assessment proceedings u/s 148 of the Act on the ground that jurisdictional conditions were not satisfied for exercising powers u/s 147 of the Act. The assessee has further challenged the validity of the assessment on the ground that no valid notice u/s 143(2) of the Act was issued.

3. Representatives were heard at length. Case records carefully perused.

4. Briefly stated the facts of the case are that a survey u/s 133A fo the Act was conducted at the premises of U.S. Roofs Limited and U.S.

Reality Ltd.. The assessee is the managing director of U.S. Roofs Limited. A notice u/s 148 fo the Act dated 24/11/2010 was issued by the AO followed by notice u/s 142(1) of the Act dated 02/02/2011 directing the assessee to file return of income. On the very same date i.e., 02/02/2011, notice u/s 143(2) of the Act was also issued.

5. The assessee filed his return of income on 03/03/2011. This makes the notice u/s 143(2) of the Act dated 02/02/2011, non est inasmuch as the same was issued even before filing the return of income by the assessee.

6. Again a notice u/s 142(1) of the Act dated 21/07/2014 was issued directing the assessee to submit details as mentioned in the notice dated 02/02/2011. At this juncture, it would be pertinent to mention that the time limit to issue the notice u/s 143(2) of the Act, after the date of filing of the return which is 03/03/2011, expired on 30/09/2011. On 10/07/2012, second notice u/s 143(2) of the Act was issued which is beyond the time prescribed for issuance of notice u/s 143(2) of the Act. 6.1. On the peculiar facts of the case discussed hereinabove, the first notice dated 02/02/2011 u/s 143(2) of the Act was premature and non est as no return of income was available with the AO. A valid return was filed on 03/03/2011 and the time limit available for issue of notice u/s 143(2) of the Act was till 30/09/2011 but the second notice was issued u/s 143(2) of the Act on 10/07/2012, which is beyond the period of limitation.

7. The Hon’ble Supreme Court in the case of Hotel Blue Moon {321 ITR 362} has settled the position of law that in the absence of any valid notice u/s 143(2) of the Act, the entire assessment order stands vitiated as bad in law. On identical facts, the Co-ordinate bench in the case of M/s. U.S. Roofs Ltd. in ITA No. 1196/Mum/2018 & ITA No.

1960/Mum/2018, vide order dated 26/05/2023, held as under:-

“4. The dispute raised by the assessee, by way of the aforesaid additional ground, is that the assessment in the present case has been concluded without issuing a valid statutory notice under section 143(2) of the Act. Since this is a jurisdictional issue, therefore, we deem it appropriate to deal with this jurisdictional aspect first and if necessary thereafter, to deal with the other issues raised in the present cross-appeal.

5. The brief facts of the case pertaining to this issue are: The assessee is a company engaged in the business of sale and purchase of plot rights in respect of agricultural lands acquired by the Gover