The reference relates to the assessment year 1962-63 and 1963-64. Lalchand Todi is the assessee. He was a partner of a firm called Tinsukia Flour Mill. 2. The assessee was served a notice on August 11, 1966 (Sec. 142(1)) for production of books of accounts. The assessee represented on August 10, 1966 a mob broke into the office of the firm at 11 A. M., ransacked the books of account for five hours and burnt out books of account, other record and properties worth Rs. 5,000/-. The assessee therefore was unable to submit books of account at the inquiry by the ITO. The assessment orders for years 1962-63 and 1963-64 were finalised without books of accounts under S. 144 of the Act. The assessee filed unsuccessfully appeals before Appellate Assistant Commissioner and before the Appellate Tribunal. Later under clause (2) of Section 256 of the Income Tax Act the following two questions are referred to this Court : "(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the best judgment assessment under Section 144(b) of the Income-tax Act, 1961, for the assessment years 1962-63 and 1963-64 could be legally made without issuance of a notice under Section 143(2) although the failure to comply with the terms of the notice under Section 142(1) was stated to be due to reasons beyond the assessee's control ? (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the best judgment assessment for the years 1962-63 and 1963-64 could not be challenged except for the quantum of assessment since no applications under section 146 of the Income-tax Act, 1961, were made ? " 3. The learned counsel for the assessee in support of the first question argued Section 143(2) of the Income-tax Act was not served on the assessee before the assessment order was finalised therefore the procedure prescribed under the Act was not followed. What is urged more is if assessment order is finalised without notice to the assessee in such a case principles of natural justice stand violated. The contention that procedure prescribed is not followed is well founded. Furthermore we also see the principle of audi alterant partem stands violated. 4. What is urged more is if assessment order is finalised without notice to the assessee in such a case principles of natural justice stand violated. The contention that procedure prescribed is not followed is well founded. Furthermore we also see the principle of audi alterant partem stands violated. 4. We have earlier referred to the fact when assessee was served to cause production of account books he stated the books were not available for they were burnt in the arson and riots occurred on August 6, 1966. The issue in such circumstances is whether the assessee was entitled to further notice under Section 143(2). The revenue in this case argued the assessment is not made under clause (c) of Section 144 of the Income Tax Act therefore no notice need be served on the assessee. Speaking of procedure under the Act the assessee filed the return. The return was not accepted by the ITO. He held an inquiry and passed an assessment order. The assessee contends clause (c) of Sec. 144 applies as the return filed by the assessee is varied or concluded to the detriment of the assessee, therefore he is entitled to a notice under Section 143(2) of the Act. At the relevant time Section 143 of the Act clause (2) was in the following words : "(2) When a return has been made under section 139 but the Income-tax Officer is not satisfied without requiring the presence of the assessee or the production of evidence that the return is correct and complete, he shall serve on the assessee a notice requiring him, on a date to be therein specified, either to attend at the Income-tax Officer's Office or to produce, or to cause to be there produced any evidence on which the assesses may rely in support of the return." (emphasis is supplied) 5. If the ITO is not satisfied of the return he can serve notice is expressly stated in clause (2). The issue is whether ITO can pass assessment order in circumstances of the case without notice to the assessee. It is in this grey area the language of the clause (2) of Section 143 is silent and we however hold including in such a grey area the principle of audi alterant partem operates and no order can be passed without hearing the assessee. 6. It is in this grey area the language of the clause (2) of Section 143 is silent and we however hold including in such a grey area the principle of audi alterant partem operates and no order can be passed without hearing the assessee. 6. In one of the decisions of this Court, in an analogous situation, in 111 ITR 507 (Jai Prakash Singh vs. Commissioner of Income-tax, Assam) at page 513 the application of principles of natural justice in this regard was high lighted. In that case legal representatives were not heard and this court applied interpreting Section 143 (2) held principles of natural justice were applicable. "The finding of the Tribunal that non-service of notice under section 143 (2) of the Act against nine out of the ten legal representatives of the deceased B. N. Singh, did not invalidate the assessment orders of the Income-tax Officer, is not sustainable in law. Violation of the principles of natural justice, and, more particularly, violation of statutory principles of natural justice, as in the instant case, takes away the jurisdicition of the authority concerned to proceed with the proceedings and make the assessment orders and necessarily invalidates the proceedings and the orders passed therein. If you want to assess the estate of the deceased assessee, the estate must be fully represented by impleading all the legel representatives and serving of notices on all of them who represent the entire estate. If you do not do that, assessment proceedings and assessment orders passed therein will cease to be valid proceding and valid orders in the eye of law. Thus, it was the legal duty of the Appellate Assistant Commissioner and also of the Tribunal to annul the assessments in the instant case. After annulment of the assessment orders, if law permits and there is no bar under the limitation prescribed by law, fresh assessment proceedings may be drawn up in appropriate cases but instead of passing an annulment order, bypassing an order setting aside the assessments and directing completion of the assessments by issuing notices on the remaining legal representatives, as has been done in the instant case, the authority may not be allowed to nullify the provisions of law as laid down in Section 153 of the Act." The facts in that decision were a fortiori case, 7. In the instant case it is argued on behalf or the Revenue that once account books were not available there was nothing further which the assessee could have represented therefore the assessment was completed without notice under clause; (2) of Section 143 and in doing so the order suffered no vice whatever. In arguing in that strain what is missed is assessee could show his return was correct and that he could show only if he was beard. He would have or may have adduced evidence to support the return therefore the contention the ITO could have concluded the assessment without notice under section 143 cannot be countenanced. 8. For all the aforesaid reasons question referred is answered in the negative in favour of the assessee against the Revenue. In view of our finding on the first question, the second question does not call for an answer. The questions are answered as indicated with costs of Rs. 250/-to assessee.