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2008 (1) TMI 444 - AT - Income TaxNon issuance of notice u/s 143(2) - Validity of assessment order passed u/s 147 r/w section 143(3) - notices calling for certain information from the assessee and not notices calling for the return of income - HELD THAT:- In the present case, the letter was written on 23-3-2000 and it is not in dispute that such a letter was received by the Assessing Officer. Therefore, the date of filing the return under section 148 was 23-3-2000 with the result that the last day for issue of the notice under section 143(2) was 31-3-2001 as per the proviso to the sub-section. As already noted, no notice u/s 143(2) was issued to the assessee before this date or at any time thereafter. Even if we were to consider the notices issued u/s 142(1) as notices calling for the return of income, they having been issued after 31-3-2001 are beyond, the time prescribed by the proviso to sub-section (2) of section 143 and would be barred by limitation. In point a fact, however, these notices are not notices calling for the return of income; they have only called for certain information from the assessee. We are unable to agree with the CIT(A) that a notice "appears" to have been issued u/s 143(2). He has examined the record and has found that "the copy of the same is not on record at present". He has used guarded words, such as "at present". Nevertheless, he has proceeded to hold that a notice "appears" to have been issued. We are unable to appreciate how in the absence of any evidence for issue or service of the notice, or even a copy of the notice on file, such a finding could have been recorded by the CIT(A). In the present case the assessee has been held to have filed such a return on 23-32000 and thus this condition is satisfied. The other condition is that the notice under section 143(2) should have been served within the time-frame prescribed under clause (b) of the proviso. This condition is not satisfied in the present case because no notice has at all been served under section 143(2) as found by us. The clause applies only to save a notice served on the assessee, though not within the period of 12 months from the end of the month in which the return was filed. When no notice at all has been served, the clause does not apply to save the validity of the reassessment order. Therefore, the first proviso to section 148(1) does not save the situation. Thus, we accept ground No. 1 taken by the assessee in his cross objection and hold that the reassessment made u/s 148 r/w section 143(3) of the Act is invalid and is quashed. In the view we have taken, it is not necessary to adjudicate upon the other grounds taken in the cross objection or to deal with the appeals filed by the assessee and the department. In the result, the assessee's cross objection is allowed and the appeals filed by the assessee and the department are dismissed as infructuous.
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