ORAL ORDER AKIL KURESHI 1. The Revenue is in appeal against the judgment of the Income-tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') dated April 26, 2013, raising the following questions for our consideration : “(i) Whether in the facts and circumstances of the present case, the learned ITAT has erred in law in confirming the order of CIT (A) cancelling the assessment order u/s 158 BC of the Income Tax Act without appreciating that the assessee's return for block period filed u/s 158 BC of the Income Tax Act beyond the time limit of 45 days was invalid and therefore notice u/s 143(2) was not required to be issued ? (ii) Whether in the facts and circumstances of the present case, the department is required to issue notice u/s 143(2) of the Income Tax Act even though the assessee had not filed the return of income for block period within the maximum prescribed limit of 45 days pursuant to notice u/s 158 BC of Income Tax Act ? 2. The issue pertains to assessment for the block assessment period from April 01, 1989 to March 28, 2000. This is the second round of litigation till the stage of the Tribunal. In the previous round, the Tribunal by its order dated May 16, 2008, issued the following directions : “In view of aforesaid totality of facts and circumstances of the case, we are of the opinion that the facts and circumstances of two appeals of different assessees before us, so far issuance and service of notice u/s 143(2) of the Act, in the case of block assessment within the stipulated/ prescribed limitation period is concerned, being the same as were in the case of Shri Rameshkumar Surajmal Soni (supra), we, following the Tribunal's decision in the case of Rameshkumar Surajmal Soni (supra), admit the additional ground in both the present cases and, further after following the findings as contained in paragraph Nos.9, 10 & 11 of the aforesaid order of the Tribunal in the case of Shri Rameshkumar Surajmal Soni, restore the issue back to the file of CIT (Appeals) with the direction that he will verify from the assessment records as to whether any notice u/s 143(2) of the Act in the case of these two assessee had ever been issued and served before the limitation period prescribed u/s 143(2) of the Act. In the case, it is found that no notice u/s 143(2) of the Act has been served upon, on any of that two assessees within the limitation prescribed as per proviso to section 143(2) of the Act, he will cancel the assessments as illegal and bad in law, in the light of decision of Hon'ble Gauhati High Court in the case of Smt. Bandana Gagoi (supra). In case, it is found that these assessees or any one of them had been served with notice u/s 143(2) of the Act, within the prescribed, then will restore his original orders and assessee will be free to come before the Tribunal for decision on the merits.” 3. Pursuant to this order, the Appellate Commissioner passed order dated April 27, 2010 and held as under : “5. After going through the entire facts of the case it is seen that the Block return was filed on 29.11.2000 and notice u/s 142(1) was issued by the AO dated 24.01.2002. In my opinion this notice is equivalent to notice u/s 143(2) because through notice u/s 142(1) the appellant was required to produce or cause to be produced the documents/ accounts in the office of the AO which is as good as affording opportunity of hearing u/s 143(2), but this notice has not been issued within a year of filing of the block return, therefore following Hon'ble ITAT Ahmedabad Bench “A” decision dated 16.05.2008 quoted above in the case of the appellant himself the block assessment order is directed to be cancelled, as Hon'ble ITAT has already directed the CIT(A) to cancel the assessments as illegal and bad in law in the light of decision of Hon'ble Gauhati High Court in the case of Smt. Bandana Gogoi.” 4. This order of the Appellate Commissioner was carried in appeal before the Tribunal. In the second round, the Tribunal rejected the Revenue's appeal with the following observations: “3. Having heard the submissions of both the sides, we have noted that the question of issuance of notice u/s 143(2) as prescribed was very much in the knowledge of the Revenue Department and a remand report has also been called for by the ld.CIT (A). In the second round, the Tribunal rejected the Revenue's appeal with the following observations: “3. Having heard the submissions of both the sides, we have noted that the question of issuance of notice u/s 143(2) as prescribed was very much in the knowledge of the Revenue Department and a remand report has also been called for by the ld.CIT (A). In the absence of any specific information in respect of the issuance of notice u/s 143(2) of the Act, ld.CIT (A) was left with no option but to quash the impugned order in view of the directions of the Tribunal. The directions of the Tribunal were that the CIT(A) will verify from the assessment record as to whether any notice u/s 143(2) of the Act had ever been issued and served before the limitation period prescribed and in case it is found that no notice u/s 143(2) has been served upon, he will cancel the assessments as illegal and bad in law in the light of the decision of the Hon'ble High Court in the case of Smt. Bandana Gogoi vs. CIT (289 ITR 28) (Gauhati). Since the directions were very specific and the Revenue has not demonstrated about the issuance of the notice u/s 143(2) of the Act as per the provisions of the Act, therefore the assessment orders were cancelled by categorically mentioning that, “assessment order is directed to be cancelled, as Hon'ble ITAT has already directed the CIT (A) to cancel the assessments as illegal and bad in law in the light of decision of Hon'ble Gauhati High Court in the case of Smt. Bandana Gogoi.” 3.1 We find no fallacy in the aforesaid decision of ld.CIT (A) because he was expected to pass such an order which ought to be in line with the directions of the Tribunal being a superior authority in the judicial Hierarchy as held in the case of Bank of Baroda vs. H.C. Shrivastava reported at (2002) 256 ITR 385 (Bom.). Resultantly, we find no force in this ground of the Revenue, hence dismissed. Thus, these two appeals bearing IT (ss) A Nos.571/Ahd/2010 & 572/Ahd/2010 of the Revenue Department are hereby dismissed.” 5. The short question, therefore, involved in this appeal is whether the Tribunal committed error in rejecting the Revenue's appeal confirming the decision of the CIT(A). Resultantly, we find no force in this ground of the Revenue, hence dismissed. Thus, these two appeals bearing IT (ss) A Nos.571/Ahd/2010 & 572/Ahd/2010 of the Revenue Department are hereby dismissed.” 5. The short question, therefore, involved in this appeal is whether the Tribunal committed error in rejecting the Revenue's appeal confirming the decision of the CIT(A). We notice that in the order dated April 26, 2013, which is impugned in this appeal, all that the Tribunal has done is to confirm the decision of CIT (A) when it was found that there was no dispute about non-issuance of notice under section 143(2) of the Act to the respondent-assessee. On such basis, the Commissioner following the directions of the Tribunal given in the earlier order allowed the assessee's appeal and declared the assessment proceedings as invalid. 6. We have reproduced the relevant portion of the decision of the Tribunal, in which specific directions were given to the Commissioner regarding the question whether such notice under section 143(2) of the Act was issued or not. The Commissioner only followed the direction and when found that no such notice was issued, passed the consequential order. The Revenue, if at all, was perturbed by the directions of the Tribunal in the order dated May 16, 2008, should have challenged the same. Admittedly, this was not done. In that view of the matter, there was consequential order passed by the Commissioner (Appeals), which was in term confirmed by the Tribunal. 7. The learned counsel Mr.Varun Patel appearing for the Revenue, however, vehemently contended that when the assessee failed to file return within the time in response to the notice under section 158 BC of the Act, there would thereafter be no requirement of issuing notice under section 143(2) of the Act. We do not enter into this question simply because such a contention could have been raised only while challenging the order dated May 16, 2008, which was not done. 8. Subject to the above observations, the Tax Appeal is dismissed.