TMI Blog2017 (6) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the provisions of Sec.143(2) shows that the said notice is not assessment year specific but it is return specific. Its time limit is computed from the end of the financial year in which the return is furnished. It is mandatory for the issuance of notice u/s.143(2) in the event that the AO proposes to make assessment u/s.143(3). In the present case, the AO having not issued notice u/s.143(2) in respect of a valid revised return filed on 26.02.2014 and more so, the said return have not been treated as invalid, the consequential assessment is bad in law, in view of the principles laid down in the Hon ble Supreme Court in the case of ACIT vs. Hotel Blue Moon reported in [ 2010 (2) TMI 1 - SUPREME COURT] . Further, in view of the position in law that if a revised return is filed u/s.139(5) and if such return is a valid return then the assessment can be completed only on the basis of such revised return as has been held in the case of Orissa Rural Housing Development Corporation Ltd. [ 2011 (12) TMI 230 - ORISSA HIGH COURT] the assessment is liable to be annulled. - Decided against revenue. - ITA No.22/Mds/2016 & CO No.56/Mds/2016 [in ITA No.351/Mds/2016], ITA Nos.351 & 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was getting time barred on 31.03.2015. It was a further submission that the factum of non-issuance of notice u/s.143(2) was also brought to the attention of the AO vide letter dated 27.03.2015 in response to the show cause notice issued by the AO dated 23.03.2015. It was submitted by the Ld.AR that in the Assessment Order, the AO recognized the existence of the revised return filed on 26.02.2014 by e-filing at Page No.4 Para No.6 of the Assessment Order. It was a further submission that at Page No.33 Para No.14, the AO considered the objection of the assessee in respect of non-issuance of notice u/s.143(2). It was a submission that the AO did not reject the revised return filed by the assessee on 26.02.2014 but has considered the data disclosed in the revised return filed on 26.02.2014 but had rejected on merits, the results admitted and the method of accountancy adopted in the said return. It was a submission that the notice u/s.143(2) having not been issued in respect of the return filed on 26.02.2014, the assessment was liable to be annulled. 4. In reply, Ld.DR submitted that the assessee had objected to the non-issuance of notice u/s.143(2) only on 27.03.2015 which is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequential Assessment Order u/s.143(3) dated 30.03.2014 for the AY 2012-13, in the case of the assessee is bad in law and stands annulled. 7. In the result, the appeal filed by the assessee in ITA No.22/Mds/2016 is stands allowed, the appeal filed by the Revenue in ITA No.351/Mds/2016 is stands dismissed and the CO No.56/Mds/2016 filed by the assessee is stands dismissed. ITA No.3192/Mds/2016 for the AY 2013-14: 8. In this appeal, the Revenue has challenged the action of the Ld.CIT(A) in cancelling the Assessment Order on the ground that notice u/s.143(2) has been issued in respect of revised return filed but the assessment had been completed on the basis of the original return filed. It was a submission that the assessee had filed his return of income on 29.09.2013 originally u/s.139(1) admitting a total income of ₹ 4,54,780/-. Subsequently, a revised return was filed u/s.139(5) on 26.02.2014 admitting NIL income. Notice u/s.143(2) had been issued on 10.09.2014 being after the filing of the revised return u/s.139(5) on 26.02.2014. However, when completing the assessment, the AO rejected the results admitted and the method of accounting adopted in the return fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may rely, in support of such claim . 5.2 This makes it amply clear that notice under section 143 (2) is issued in respect to a return of income and not with respect of assessment year. In the instant case, notice under section under 143 (2) dated 10-09-2014, has been served in connection with the return of income submitted by the appellant on 26-02-2014, but the assessment has been proceeded with in relation to original return filed on 29-09-2013 for which no notice under section 143 (2) has been served. 5.3 The assessment suffers on four grounds from the legal angle - 1. Notice under section 143(2) is issued/served in connection with a return of income filed and not in connection with an assessment year. There can be more than one returns filed for an assessment year. It has been held that the effective return for the purposes of assessment is return filed ultimately by the assesseee on basis of which he wants his income to be assesseed. (Dhampur Sugar Mills Ltd. Vs Commissioner of Income Tax (90 ITR 236 (Allahabad). 2. In connection with the original return filed on 29-09-2013, no notice under section 143 (2) has served. Service of notice under section 143 (2) is man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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