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2020 (12) TMI 604 - AT - Income TaxReopening of assessment - requirement of issue of notice u/s 143 - assessee individual has not filed any return of income u/s 139(1) - HELD THAT:- When Section 148 notice was issued to the assessee, the assessee was given time for 30 days to file the return of income. The assessee neither filed original return u/s 139(1) of the Act nor filed any return in response to the notice u/s 148 of the Act within the time given by the Assessing Officer. The assessee filed the return of income only on 23rd September, 2017. Therefore, these returns cannot be considered as a return in response to the notice u/s 148 - return filed by the assessee is as such non-est. There is no requirement of issuance of notice u/s 143(2) of the Act, when there is no valid return available before the Assessing Officer. However, the judicial precedent clearly says that while framing the assessment order u/s 143(3) read with Section 147 AO must issue a notice u/s 143 (2) of the Act as per the Proviso to Sub-Section 143(2) of the Act provides specifically that where a return has been filed by the assessee, either u/s 139 or u/s 143(1) or u/s 148 of the Act. In this case, there is no such return filed by the assessee. In view of this, we categorically held that there is no infirmity in the order of the Coordinate Bench in holding that there is no requirement of issue of notice u/s 143 of the Act in the present case. Whether in case the return filed by the assessee as late as in the month of September, 2017 can be treated as valid return or not? - The answer is clearly ‘No’ as even after 30 days any return of income filed by the assessee would not have been taken cognizance by the Assessing Officer. There is no requirement of the law that if the return is filed any time before Assessing Officer u/s 148 read with 143 (3) of the Act, the Assessing Officer should have been issued notice u/s 143(2). The question will arise then that if the assessee was issued a notice u/s 148 of the Act and he does not file any return of income till the date of framing of the assessment order or also filed a return before passing of the assessment order u/s 143(2) of the Act, then what is the stand Revenue should take? In such case, it is not at all possible that the assessee can contest that notice u/s 143(2) should have been issued, in all such cases where reassessment is required to be made.
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