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2019 (4) TMI 2080 - AT - Income TaxReopening of assessment u/s 147 - “reason to believe” OR “reason to suspect” - Whether assessee has duly filed return of income for the assessment year under consideration? - Assessee has alleged that the AO in his reason record for reopening of assessment stated that the assessee has not filed any return of income for the assessment year under consideration whereas the assessee has duly filed return of income for the assessment year under consideration - HELD THAT:- Respectfully following the ratio of judgement of Hon`ble Jurisdictional High Court in the case of Sunrise Education Trust v. Income Tax Officer[2018 (2) TMI 1471 - GUJARAT HIGH COURT] wherein it was held that when the AO in the reasons recorded proceeded on the erroneous footing that the assessee has not filed return of income at all and when it is not in dispute that the assessee did file the return of income for the assessment year under consideration, which was duly acknowledged by the department, then, it has to be held that the entire reasoning thus proceeded on the wrong premises that the assessee had never filed the return. This, itself would be sufficient to annual the notice of reopening the assessment. In view of the above and in the light of ratio laid down by the Hon`ble High Courts of Gujarat as quoted above and respectfully following the same, we hold that entire reasoning recorded by the AO for initiation of reassessment proceeding and issuance of notice under section 148 of the Act was on the wrong and incorrect facts that the assessee has never filed the return of income, and in fact, it was filed. This view is further supported by decision of Co-ordinate Bench of Surat Tribunal in the case of Vishal Dilip Rai [2018 (9) TMI 2022 - ITAT SURAT] in which following the decision of Hon`ble High Court of Gujarat in the case of Sunrise Education Trust[2018 (2) TMI 1471 - GUJARAT HIGH COURT] quashed the reopening of assessment as the reasons mentioned that the assessee has not filed return whereas the assessee did file the return of income. We are inclined to hold that the initiation of reassessment proceeding u/s.147 of the Act and notice under section 148 of the Act of the Act and all subsequent proceedings and orders have been issued, conducted, passed without having valid jurisdiction, and therefore, the same are bad-in-law and hence, we quash the same. Accordingly, legal ground no. 1 above of the assessee is allowed and notice under section 148 of the Act with impugned reassessment proceeding of the AO /CIT (A) are quashed.
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