Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2016 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (8) TMI 1190 - AT - Income TaxReopening of assessment - invalid returns - Held that:- In the present cases the AO did not find any defect in the returns of income filed by the assessee and therefore, these returns cannot be treated as invalid returns. The arguments of the learned Departmental representative, that these returns were invalid returns do not hold any force in view of the above provisions of section 139(9) and also in view of the fact that the Assessing Officer in view of the returns filed by the asses see carried out assessment proceedings on December 29, 2008 and December 30, 2008 and passed the order on December 30, 2008 after hearing the counsel of the assessee. The entries in the order-sheet indicate that the Assessing Officer on the basis of the returns filed by the assessee on December 29, 2008 required the assessee to furnish certain information and after obtaining information the counsel of the assessee again appeared on December 30, 2008. The replies of the assessee in the form of two letters both dated December 30, 2008 are placed at (paper book pages 4 to 6). The Assessing Officer after considering the replies of the assessee has passed the order on December 30, 2008. In view of these facts and circumstances the plea of the learned Departmental representative that the returns filed by the assessee were invalid returns do not hold any force and this argument is rejected. - Decided in favour of assessee Notice not Issued under section 143(2) - as per revenue time available for completion of assessment was not sufficient - Held that:- Arguments of DR that the time available for completion of assessment was not sufficient and therefore, notice was not required to be issued under section 143(2) also do not hold any force in view of the fact that on December 29, 2008 itself the Assessing Officer could have served the notice under section 143(2) on the counsel of the assessee which would have been sufficient compliance with the provisions. As per the order-sheet entries the counsel of the assessee took part in assessment proceedings on December 29, 2008 and December 30, 2008. The issue of notice under section 143(2) is a mandatory requirement which cannot be cured even after the insertion of section 292BB of the Act as held in various judicial pronouncements. The Hon’ble Allahabad High Court in the case of CIT v. Salarpur Cold Storage P. Ltd. [2014 (8) TMI 732 - ALLAHABAD HIGH COURT] has clearly held that assumption on jurisdiction without issuing of notice under section 143(2) cannot be cured by taking recourse to deeming fiction under section 292BB of the Act. - Decided in favour of assessee
|