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2019 (7) TMI 1875 - AT - Income TaxReopening of assessment u/s 147 - period of limitation to issue notice u/s 143 - HELD THAT:- The proviso to sec. 143(2) states that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. So, from a bare reading of the provisions, it is clear that the AO is barred from serving any notice u/s. 143(2) of the Act on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. Therefore, in this case, since the assessee pursuant to the notice u/s. 147/148 of the Act dated 21.01.2013 had requested the AO to treat the original return of income filed u/s. 139 of the Act as the return in response to the notice u/s. 147/148 vide letter dated 19.02.2013 means the AO had to issue 143(2) notice before 31.08.2013. Admittedly, the 143(2) notice has been issued on 12.12.2013 and, therefore, the action of the AO is barred by the limitation prescribed by the 1st proviso to sec. 143(2) of the Act and the Hon’ble Supreme Court in the case of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] has held that issuance of notice u/s 143(2) is mandatory for scrutiny assessment even in cases of assessments after search u/s 132 of the Act. Since issuance of notice u/s 143(2) is mandatory before scrutiny assessment even section 292BB of the Act cannot come to the rescue of the AO. Further, we do not find any merit in the argument of the Ld. CIT, DR that return of income should have been filed and not the letter requesting the AO to treat the original return as the return of income pursuant to the 147/148 notice. Therefore, the notice issued by A.O u/s 143(2) dated 12.12.2013 is hit by the 1st Proviso to section 143(2) of the Act and therefore the A.O had no jurisdiction to issue notice u/s 143(2) after 31.08.2013 and therefore the issuance of notice u/s 143(2) dated 12.12.2013 and all subsequent action is null in the eyes of the law - Decided in favour of assessee.
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