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IN THE HIGH COURT OF ORISSA AT CUTTACK

ITA No.20 of 2017

Principal Commissioner of Income

Tax, Bhubaneswar

….

Appellant

Mr. T.K. Satapathy,

Sr. Standing Counsel Income Tax Deptt.

-versus-

Orissa Mining Corporation Ltd.

….

Respondent

Mr. S. Ray, Advocate

CORAM:

THE CHIEF JUSTICE

JUSTICE A.K. MOHAPATRA

Order No.

ORDER

25.02.2022

Dr. S. Muralidhar, CJ.

07.

1. The

matter

is

taken

up

through

hybrid

arrangement

(virtual/physical mode).

2. This is an appeal filed by the Revenue against an order dated 21^st

April, 2017 passed in ITA No.372/CTK/2015 for the assessment year

2008-09. The question of law sought to be urged by the Revenue is:

‘whether the Tribunal is correct in quashing the reassessment order

dated 30^th January, 2015 of the Assessing Officer (AO) on the ground

that it was completed without issuing notice to the assessee under

Section 143 (2) of the Income Tax Act, 1961 (for short ‘the Act’)?

3. Mr. T.K. Satpathy, learned counsel for the Revenue placed

reliance on the judgment of the Delhi High Court in the case of

Commissioner of Income Tax v. Madhya Bharat Energy

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Corporation Ltd (2011) 337 ITR 389 (Del), which purportedly

supports the Revenue’s point of view.

4. In response to the same, Mr. S. Ray, learned counsel for the

assessee draws attention of this Court to the subsequent judgment in

the case of Pr. Commissioner of Income Tax-08 v. Shri Jai Shiv

Shankar Traders Pvt. Ltd. (2016) 383 ITR (Del) 448, wherein in

para-9 it has been noted as under:

“9. Dr. Rakesh Gupta, learned counsel appearing for the

Assessee, at the outset drew the attention of this Court to

an order passed by this Court on 17^th August, 2011 in

Review Petition No.441/2011 in ITA No.950/2008 (CIT v.

Madhya Bharat Energy Corporation) whereby this Court

reviewed its main judgment in the matter rendered on 11st

July, 2011 on the ground that the said appeal had not been

admitted on the question concerning the mandatory

compliance with the requirement of issuance of notice

under Section 143(2) of the Act. In its review order, this

Court noted that at the time of admission of the appeal on

17^th February, 2011 after noticing that in the said case that

no notice under Section 143(2) had ever been issued, the

Court held that no question of law arose on that aspect. The

upshot of the above discussion is that the decision of this

Court in CIT v. Madhya Bharat Energy Corporation

(supra) is not of any assistance to the Revenue as far as the

issue in the present case is concerned.”

5. As a result, the decision in Madhya Bharat Energy Corporation Ltd

(supra) does not any longer support the case of the Revenue.

6. Mr. Satpathy next relied on the decision of the Supreme Court in

the case of Commissioner of Income Tax, Shillong v. Jai Prakash

Singh (1996) 3 SCC 525. The Court notes the said a case arose out of

a challenge to an assessment order and not a re-assessment order and

examined the effect of non-service of notice under Section 143 (2) of

the Act in that context.

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7. However, in the context of reopening of assessment, as a result of

block assessment proceedings, the Supreme Court in Assistant

Commissioner Income Tax v. Hotel Blue Moon (2010) 321 ITR 362

(SC) has held that the completion of an assessment pursuant to block

assessment proceedings without notice under Section 143(2) of the

Act and within the time prescribed therein is fatal to such assessment.

The said decision of the Supreme Court that was relied on in the

decision of the Delhi High Court in Shri Jai Shiv Shankar Traders

Pvt. Ltd. (supra), which has answered the very question raised by the

Revenue here against it and in favour of the Assessee.

8. Finally it was submitted by Mr. Satapathy, that although the

Assessing Officer did not issue notice