- (1.) WE have heard Sri R.K. Upadhyay, learned counsel for the appellant and Sri Rahul Agarwal, the learned counsel for the opposite party.
(2.) THE Appeal was admitted on the following substantial question of law : "Whether on the facts and in the circumstances of the case, the Hon'ble Income Tax Appellate Tribunal has erred in law in holding that the assessment framed under Section 143(3) was void ab initio and in quashing/canceling the same, without appreciating the ratio of the decision of the jurisdictional High Court in the case of Sant Baba Mohan Singh v. CIT reported in : 90 ITR 197 wherein it was held that "the omission of the Income tax officer to issue notice u/s. 23(3) did not affect the ab initio jurisdiction enjoyed by the Income tax officer in respect of the proceedings."
(3.) WE find that the contention of the appellant that a notice under Section 143(2) of the Income Tax Act was issued by speed post on 17.3.2003 and again on 9.2.2004 is incorrect. The Commissioner of Income Tax (Appeal) as well as the Tribunal have given a categorical finding that the said notice so issued by speed post was a notice for penalty and was not a notice under Section 143(2) of the Income Tax Act. This, being a finding of fact, cannot be agitated now in these proceedings. In view of the fact that no notice was issued under Section 143(2) of the Income Tax Act, no assessment order under Section 143(3) of the Act could have been passed. In the light of the aforesaid, the Tribunal was justified in quashing the assessment proceedings on the ground that no valid notice under Section 143(2) of the Act was ever issued to the assessee.;