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2011 (11) TMI 319 - AT - Income TaxValidity of assessment u/s 144 – validity of return filed u/s 139(4) - A.Y. 07-08 – notice issued u/s 142(1) on 16.10.07 requiring assessee to file return by 20.12.07 – assessee filed return on 27.03.08 - subsequent notices u/s 142(1) were issued on 30.03.09, 5.10.09, 26.10.09 and 30.11.09 - non-compliance of notices by assessee - addition on account of long term capital gain arising out of sale of agricultural land - Held that:- As per provisions of Section 139(4) assessee was having a right to file the return within one year from the end of the relevant assessment year as he has failed to file the return within the time allowed u/s 142(1) of the Act. Therefore, in view of section 139(4) , return filed on 27-03-08 is a valid return. Since there is no notice u/s 143(2) or u/s 142(1) within time available u/s 143(2) i.e. 30.09.08, therefore, the assessment is invalid because the first notice u/s 142(1) was only for the purpose of filing the return. For the purpose of making an assessment, notice u/s 142(1) was issued for the first time on 30-04-2009. Whatever is not possible to be done directly u/s 143(2) cannot be done u/s 142(1) of the Act. In respect to addition on account of capital gains it is held that Gram Panchayat is not an authority to issue a certificate to show that the land was situated beyond the distance of more than 8 KM of the municipal limit. Therefore, issue is restored back to the file of the AO to decide whether it is a capital asset or not and thus decide allowability u/s 54.- Decided partly in favor of assessee.
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