2024 (2) TMI 745 - ITAT RAIPUR

Revision u/s 263 against non-Est order - as per assessee assessment which was taken-up for revisionary proceedings was completed u/s 143(3) r.w.s. 147 but without issuance of statutory notice u/s 143(2), therefore, the assessment was bad in law, invalid and void ab initio - as per DR Return filed by the assessee was delayed which is against the provisions of the law, thus, has been categorized as a non-Est return which does not required issuance of any notice u/s 143(2), therefore, the order passed u/s 147 r.w.s. 143(3) was a valid order and the order passed by the Ld. PCIT u/s 263 was eligible to be upheld

Validity of a return filed belatedly in response to notice u/s 148 - HELD THAT:- When a return is filed by the assessee beyond the stipulated time period, the same would not render as invalid or non-Est in the eyes of law merely because it was filed with delay. Analogy in this respect has been duly discussed and decided in the case of Smt. Amani Ismile Rangari [2017 (10) TMI 1079 - ITAT MUMBAI] which in our opinion was the right approach to be adopted, accordingly, in the present case the return filed by the assessee though belatedly, which has been recognised by issuing a valid acknowledgement, subsequently the same was E-verified by the assessee and has been duly accepted by the e-portal of the department. AO has acted upon such return therefore the same cannot be treated as a non-Est return.

Mandation of issuance of notice u/s 143(2) in completing the assessment u/s 147 r.w.s. 143(3) - As in the case of Shri Dev Narayan Sahu [2022 (5) TMI 110 - ITAT RAIPUR] wherein it has been decided that, issuance of notice u/s 143(2) is a sine-qua-non for framing of an assessment u/s 143(3), this view is well supported by the judgment of M/s Hotel Blue Moon[2010 (2) TMI 1 - SUPREME COURT], wherein as held that issuing of notice u/s 143(2) of the Act is mandatory and not a procedural mistake, if the notice is not served within the prescribed period then assessment order would be invalid. In view of such observations, we are of the considered opinion that the order passed u/s 147 r.w.s. 143(3) in the present case was invalid on account of non-issuance of notice u/s 143(2) by the Ld. AO which is an accepted fact discernible from the order of Ld. PCIT, wherein it has been impliedly observed that no notice u/s 143(2) was issued, stating that the issuance of notice u/s 143(2) is not required.

Validity of an assessment order during the Appellate Proceedings - This issue duly answered in the case of M/s Maruti Clean Coal Power Ltd [2022 (10) TMI 1215 - ITAT RAIPUR] Accordingly, we hold that as per law the assessee is permitted to challenge the validity of order passed u/s 263 on the ground that the impugned assessment order selected for revisionary proceedings, was a non-Est order.

Order framed u/s 147 r.w.s. 143(3), which was passed dehors issuance of a notice u/s 143(2) is liable to be treated as non-Est, and therefore, the revisionary proceedings initiated u/s 263 are without appropriate jurisdiction with the Ld. PCIT, since, the same cannot be invoked on the foundation of an invalid/ void ab initio assessment order.